THE 



Old Burying Ground Case. 



4888 



A HISTORY 



or THK 



Lf 



RYlKg gROUND 



AS CONTAINFJ) IN Till: CASK OF 



THE ATTORNEY-GENERAL 



AGAINST 



THE CITY OF NEWARK 



1888. 




XKH'.IRK'. X. J.: 

Ward & Tichenor, Printers. 832 & 834 Broad Street. 

I 888. 



Ill diaiKU'ry of Xpw Jersey. 



Bet'i.i'ccn 
Jf)}iN r. Stockton, Attoknev-General, 

AND OTHERS, 

Complainants, V On 
and I Bill, &c. 

Tin; Mayor and Common Council of the' 
Criv OK Newark. 

Defendants, j 

To the Honorable THEODORE RUNYON, Chancellor of the 
State of Neiu Jersey : 

Informing, showcth unto you Honor, John P. Stockton, 
Attorney-General of the State of New Jersey, on the 
information of Henry Congar, Samuel H. Pennington, 
Jabez P. Pennington, Ira M. Harrison, Henry N. Park- 
hurst, William R. Ailing, Jeremiah D. Poinier, Bruon H. 
Camp, Alexander Johnson, Augustus Dusenberry, John 
P. Dusenberry, Horace Ailing, James Bruen, Frank 
Tichenor, Ernest E. Coc, John C. Mandeville, citizens of 
the city of Newark, in the county of Essex, and heirs 
and descendants of the old settlers of the town of New- 
ark, now said city, who act herein for the benefit of all 
such citizens, heirs and descendants as may be made 
parties and contribute to the expense hereof, and for the 
protection of the charitable use hereafter mentioned ; 
and also humbly complaining, show, the said individuals 
named as such citizens, heirs and descendants, who file 
this their bill for the benefit aforesaid, and in order to 
the protection and enforcement aforesaid, 

1. That shortly after the settlement of said town, on 
the tenth day of December, 1696, the Proprietors of the 
Province of East New Jersey, in pursuance of the prem- 



ises of their concessions to actual settlers thereof, there- 
tofore made by them, did by their deed of that date, 
recorded in the Proprietors' office at Perth Amboy, in 
Book F of Proprietary Records, on pages i66 to i68, 
and to which reference is hereby prayed, grant to John 
Curtis, John Treat, Theophilus Pierson and Robert 
Young, of said town, with other lands therein described, 
a certain tract of land in the then town, now city of 
Newark, therein described as follows, to wit : 

" Secondly, all that small tract therein allotted for the 
burying place, taking in the pond and meeting-house, 
being seven chains in length and four in width, bounded 
west by John Treat, south by John Johnston, north and 
east by highways." 

Which tract by its boundaries is somewhat larger than 
by above measurements, and which grant was made to 
said grantees in said deed and their heirs, to the only 
proper use, benefit and behoof of the old settlers of the 
town of Newark, their heirs and assigns forever in com- 
mon, and granted to be and remain for said use therein 
expressed, and to be appropriated to no other use or uses 
whatever ; all of which, by reference to said deed, will 
appear. 

II. That part of said premises occupied by the pond 
and meeting-house, now constitutes land occupied by 
buildings on Broad and Market streets in said city, being 
the highways referred to in said grant, but that the bulk 
thereof, bounded by the rear of said buildings and the 
lots whereon they stand, and by Halsey street, then and 
thereafter was used for and devoted to use for interment 
and a burial place of the people of said town, otherwise 
known as the settlers thereof, being the old settlers, their 
heirs and assigns, and has been reserved and kept for 
that purpose and been known as the Old Burying Ground 
of the town of Newark ; and therein have been buried 
from time to time thence hitherto deceased persons. 



5 

people of said town as aforesaid, old settlers and their 
heirs and descendants, and there their monuments and 
memorial stones have been erected and placed, and many 
of them now remain. 

Said use was and is a charitable use, within and accord- 
inpj to the laws of this State. 

III. That afterwards and about the 15th day of Feb- 
ruar}', 1804, an act of the legislature of New Jersey was 
passed for the purpose of vesting the legal estate held by 
said trustees or their heirs, but upon the same trust and 
charitable use contained in said original deed, and it is 
hereby charged and shown that the said trust and char- 
itable use were thereby confirmed and established, and all 
the obligations incumbent by said deed upon the trus- 
tees therein named were laid upon the inhabitants of the 
township of Newark, and were by said township accepted 
and undertaken, which said statute (to which reference is 
prayed,) was to the effect and in the words following, to 
wit : 

L.wvs or 1804. (I^age 255.) 

An Act to vest in the Inhabitants of the Township of 
Newark, in the county of Essex, a certain estate now 
in the hands of Trustees. 

Whereas, the inhabitants, first settlers of the town of 
Newark, in the county of Essex, on their first settlement 
after purchasing all the lands lying in the bounds of said 
tov»-n of the native Indians, proceeded to parcel out the 
same among themselves and such settlers as thought 
proper at various times to settle in said town, according 
to the rules and regulations established by the first 
settlers respecting their admis.sion, at the same liine 
reserving certain portions of land in various parts of said 
town for public purposes, and doubts having arisen in 
respect to the validity of the Indian title, it was afterwards 
thought advisable by the inhabitants of the said town of 



Newark to take a grant from the proprietors of East New 
Jersey for the confirmation of their rights to the said pub- 
He land, and as the inhabitants of the said town were not 
incorporated by law, and were incapable of taking a legal 
estate, it was thought advisable to take the said grant in 
the name of certain trustees for the use of the said in- 
habitants, which grant was accordingly taken on the 
tenth day of December, in the year of our Lord one 
thousand six hundred and ninety-six, in the name of 
John Curtis, John Treat, Theophilus Pierson and Robert 
Young, to have and to hold to them, their heirs and 
assigns forever, to the only proper use, benefit and behoof 
of the old settlers, the town of Newark aforesaid, their 
heirs and assigns forever, in common granted to be and 
remain to and for the several uses therein particularly 
expressed, and to be appropriated to no other use or 
uses whatsoever ; and, whereas, the original trustees are 
all dead, and the heir of the survivor not known to be a 
resident in the said town of Newark, nor even in the said 
county of Essex ; and, whereas, through the ignorance 
of those infant times, the use created in the said grant, 
although really meant and intended for the benefit of 
the inhabitants of the said town of Newark and their 
successors, yet it being so inartificially expressed as to 
render it difficult for the present inhabitants of the town 
of Newark, as incorporated by law, to assert their rights 
to the said premises, by means of which the lands con- 
tained in the said grant and originally reserved by the 
first settlers for public purposes are exposed to encroach- 
ments and other injuries, without a competent remedy 
either in law or equity to prevent and punish the same ; 
for remedy whereof. 

Sec. I. Be it enacted by the Coimcil and General 
Assembly of this State, and it is hereby enacted by the 
authority of the same, That the trust estate vested in 
John Curtis, John Treat, Theophilus Pierson and Robert 



Young, their heirs and assigns forever, by a certain deed 
or patent granted by the proprietors of East New Jersey, 
bearing date the tenth day of December, in the year of 
our Lord one thousand six hundred and ninety-six, to 
them the said John Curtis, John Treat, Thcophilus Pier- 
son and Robert Young, their heirs and assigns forever, 
for the only proper use, benefit and behoof of the old 
settlers of the town of Newark aforesaid, their heirs and 
assigns forever, shall henceforth cease and be void. 

2. Afii/ be it enacted. That henceforth the estate so as 
aforesaid vested in John Curtis, John Treat, Theophilus 
Pierson and Robert Young, their heirs and assigns for- 
ever, be vested in the inhabitants of the township of 
Newark, in the county of Essex, as incorporated by law, 
and their successors forever, and they are hereby vested 
with the legal title to the same as fully and absolutely as 
though they had been originally named in the said grant, 
in the place of the said John Curtis, John Treat, Thcoph- 
ilus Pierson and Robert Young, their heirs and assigns ; 
saving, nevertheless, the right or rights of any bona fide 
purchaser or purchasers for valuable consideration, with- 
out notice of the said trust of the said John Curtis, John 
Treat, Theophilus Pierson and Robert Young, their heirs 
and assigns. 

Provided also, that nothing herein contained shall in 
any way extend to or affect the parsonage lands con- 
tained and particularly described and expressed in said 
grant ; and also such parts of the burying ground men- 
tioned and described in said grant as have either been 
leased or sold by the trustees of the First Preshyterian 
Church in Newark, previous to the first day of January 
last ; and also the ground on which the market in the 
said town of Newark now standeth. 

3. And be it enacted, That the estate hereby vested in 
the inhabitants of the township of Newark as aforesaid 
shall be appropriated and forever remain to and for the 



several uses in the said original patent aforesaid expressed, 
and for no other use or uses whatsoever. 
Passed at Trenton, February 15, 1804. 

The inhabitants of said township of Newark were after, 
wards, to wit, about the year 1836, incorporated by said 
legislature, under the name of The Mayor and Common 
Council of the City of Newark, and thereupon by force of 
the laws of this State,the said Mayor and Common Council 
of the City of Newark became subject to all the responsi- 
bilities theretofore belonging to the inhabitants of the 
township aforesaid, and succeeded to the duties of said 
trustees aforesaid. 

IV. And the said Attorney-General informing shows, 
charges and insists, and said complainants show and 
charge, that while the said township of Newark and its 
successors, The Mayor and Common Council of the City 
of Newark, thereby obtained the legal title to the said 
lands constituting the said Old Burying Ground, and 
likewise to the dead bodies of those buried therein, and 
their grave-stones and memorials as therein placed, that 
by the laws as well as by the universal feeling of man- 
kind, there was imposed upon them a duty to be dis- 
charged towards the dead — a duty and a right to protect 
the same from violation, removal or desecration. That 
while holding said legal title and having charge of the 
same they cannot be considered the owner in any sense 
whatever, but hold it as a sacred trust for the benefit of 
all who from family, inheritance or fellowship in the 
same community have an interest in it, and that a court 
of equity will regulate said ground as such, and control 
the custody thereof if improperly managed ; that the 
right of the said the Mayor and Common Council of the 
City of Newark over the same and over the bodies of the 
worthies and old settlers of Newark and others therein 
buried, is not to make of the same an article of traffic or 



profit, but that it is a sacred right to preserve its custody 
and secure the undisturbed repose of the persons there 
interred, according to decency and the universal feeling 
of mankind, and that in case of the breach of said duty, 
equity will give and only can give a full and complete 
remedy, and that this Court has full and complete juris- 
diction of the matter, and will protect said burying 
ground and the remains and memorials of those interred 
within it from desecration and from removal, and compel 
the maintenance of said burial place according to the 
original trust. 

That the relators above named are heirs by descent of 
said old settlers named in said original deed of trust ; 
their ancestors, old settlers, as aforesaid, lie buried in 
said burying ground ; they are likewise citizens and 
inhabitants of said city of Newark and taxpayers therein, 
interested in the proper distribution and use of the 
revenues thereof ; and they submit that they arc cisiids 
(juc trust under said original deed and entitled to make 
application to this Court for the enforcement of the 
trusts thereby created according to their true tenor and 
effect, and for preventing the abandonment of the 
charitable use aforesaid to which said land is thereby 
devoted. 

And the said Attorney-General on the relation afore- 
said informing, and your orators the said complainants, 
further show that nevertheless The Mayor and Common 
Council of the City of Newark, disregarding their said 
trust and sacred duty in that behalf, have not only neg- 
lected to care for the said ground, and for years suffered 
encroachment to be made thereon, paths to be made 
through the same, and that the same should become a 
common haunt for vagrants and persons of evil habits 
by day and night, a disgrace to the city and a shocking 
grief to those whose family and friends are there buried^ 
but also have lately resolved by resolution of their Com- 



lO 

mon Council to use said ground as a common and public 
market for the sale of meats and vegetables, and to let it 
out for hire for that purpose ; and that said resolution 
was the execution of a purpose conceived as long ago as 
June last, when with that purpose in view they secretly 
and unjustly procured the passage of an act of this State 
as follows, that is to say: 

"An Act to authorize the cities and other municipali- 
ties of this State to devote to other public use lands held 
for burial purposes, and to make provisions for the re- 
moval and protection of the remains interred therein. 

" Be it enacted by the Senate and General Assembly 
of the State of New Jersey, That where lands held by 
the cities or municipalities of this State for burial pur- 
poses are or may be affected by any trust that they shall 
be devoted to that use, and in the judgment of the Com- 
mon Council or other governing body the public good 
will be served by devoting such lands to other public 
uses, it shall and may be lawful in every such case to use 
such lands for any public purpose or use to which, in the 
judgment of the Common Council or other governing 
body, they are best adapted. 

" 2. And be it enacted. That in case interments have 
at any time been made on such lands or any part thereof, 
the Common Council or other governing body shall cause 
the remains so interred to be removed to some suitable 
and proper burial place, and make proper and reasonable 
provision therefor, and for the protection thereof, and to 
this end may make such reasonable appropriation of 
public moneys as may be necessary. 

" 3. And be it enacted. That this act shall take effect 
immediately. 

"Approved June 29, 1886." 



II 

And the said Attorney-General informing on the rela- 
tion aforesaid, and the said complainants complaining, 
show that the said act was introduced into the legislature 
at an extra session thereof, and at a late day therein, 
when an adjournment was daily expected, and was gotten 
through with unusual rapidity; that the same was in 
reality a private, special and local act within the mean- 
ing of the constitution of this State ; that there are no 
other cities or municipalities within this State which 
hold lands for burial purposes than the city of Newark; 
that no public notice was given of the intention to apply 
for said act, or of the object thereof ; that the passage of 
said act was forbidden by the constitution of this State, 
because of the want of such public notice, and because 
said act vacated public grounds. 

And the said Attorney-General informing as aforesaid, 
and said complainants show that in and through the 
premises, and especially through the said act of the said 
year eighteen hundred and four, and the acceptance 
thereof by the said township of Newark, to which the 
said Mayor and Common Council of said city have as 
aforesaid succeeded, a contract was made with the then 
inhabitants of said township, and a trust was thereby 
assumed by said township and impressed upon said prem- 
ises, that the same should be thereafter forever held for 
the use of a burial place for old settlers of Newark, their 
heirs and assigns, and the citizens, and for no other pur- 
pose whatever ; that the said act of one thousand eight 
hundred and eighty-six, authorized the impairing of said 
obligation, and the abrogation of said trust ; that it was 
beyond the constitutional authority of the legislature to 
authorize said city of Newark to abandon such trust and 
solemn contract, and to take and use said lands upon 
which it was as aforesaid imposed, for lucre and gain 
or otherwise than according thereto ; that the bodies 
interred in said burying ground and the monuments, 



12 

gravestones and like memorials of the dead there situ- 
ated, were respectively the property of the parties by 
whom they were deposited or erected, and their legal 
representatives ; that the legislature has no constitu- 
tional right to take the said property, remove it and 
devote it to any other use, public or private. And it is 
hereby submitted in behalf of and by said Attorney- 
General informant, and of said relators complainants, the 
said act of the legislature of 1886 was, and is unlawful 
and void, and affords no justification for any departure 
from the execution of their said trust on the part of said 
The Mayor and Common Council of the City of Newark. 
And said Attorney-General in said relation as afore- 
said, and said complainants further show that, notwith- 
standing the premises, the Common Council of the city 
of Newark passed a resolution or ordinance which is 
alleged by them, notwithstanding that the same did not 
receive the signature or sanction of the Mayor of said 
city, to have become legally operative, by which the said 
burial ground was ordered to be appropriated and used 
hereafter for the use and purpose of a public market 
place for the accommodation of hucksters, butchers and 
others in the sale of vegetables, meats and the like, and 
that the remains of the persons therein buried should be 
taken thence, together with the monuments and tomb- 
stones erected to their memory, and should be removed 
to some other place to be determined upon by a com- 
mittee of said Council by them appointed and desig- 
nated ; and said The Mayor and Common Council of the 
City of Newark, by their servants and agents in that 
behalf, are now engaged or about to enter upon the work 
of digging up the ground of said burial place, in order to 
the taking therefrom the bodies there buried and carry- 
ing them thence in preparation for arranging said burial 
ground for the purpose of a market as aforesaid. 



13 

All which conduct on the part of said The Mayor and 
Common Council of the City of Newark aforesaid is con- 
trary to good conscience and tends to the injury and 
wrong of the State and of many of the citizens thereof, 
and of the relators and complainants herein. 

In tender consideration whereof, and to the end there- 
fore that said The Mayor and Common Council of said 
City of Newark, defendants in this suit, may answer the 
premises, and that it may be adjudged and decreed by 
this Honorable Court that the said premises were granted 
in the year one thousand six hundred and ninety-six, 
and dedicated to the charitable use of a burial place for 
the old settlers of said city of Newark, their heirs and 
assigns, inhabitants of said city, and can be lawfully used 
for no other purpose whatsoever, and that said act of the 
legislature of New Jersey, passed in eighteen hundred 
and eighty-six as aforesaid, is unconstitutional and void, 
and confers no right upon said defendants to appropriate 
the same to any other use or purpose ; and that they 
should be enjoined and restrained therefrom and from 
removing the remains of persons buried there, their 
tombstones and other monuments from said burying 
ground to any other place of sepulture, and that they, 
the said defendants, may be compelled by the order and 
decree of this Court hereafter to maintain and keep the 
said burying ground in a decent and proper manner, so 
as to protect the remains and memorials whatsoever of 
the dead there interred from desecration, and as befits 
the purpose of said grant and dedication ; and that your 
Honor would grant such other relief as shall be agreeable 
to equity and good conscience. 

May it please your Honor, the premises considered, to 
grant to the said the Attorney-General, informant as 
aforesaid, and to your orators, not only the State's writ 
of injunction, to be directed to the said defendants and 
their agents, thereby restraining and enjoining them as 



H 

by this information and bill prayed, but also the writ of 
subpoena, to be to said defendants directed, commanding 
them to appear before your Honor in this Honorable 
Court, at a certain time and place therein to be named, 
then and there to answer the premises, and to abide by 
and perform such order and decree herein as to your 
Honor shall seem fit and agreeable to equity and good 
conscience. 

CORTLANDT & WAYNE PARKER, 

Solicitors for the complainant and relators, and of counsel 
for the informant, relators and complainants. 



In Chancery of New Jersey. 

In'lzvccn \ 

John P. Stockton, Attorney-General, 
AND others, 

Complainmits, [ Oii-Bill, S:c. 

and 

A i\sivcr. 
The Mayor and Common Council of^ 
THE City of Newark, 

Defctidants. 

The answer of The Mayor and Common Council of the 
City of Newark, defendant, to the information or bill of 
John P. Stockton, Attorney-General, and others, com- 
plainants : 

1. This defendant, for answer to the said bill, states 
that as to the matters set forth in the said bill or infor- 
mation, this defendant expressly denies each and every 
of the allegations thereof, except in so far as the same 
arc admitted or set out herein, and in so far as the same 
arc not hereinafter admitted or set out, this defendant 
prays that the complainants may be put to their proof 
thereof. 

2. And this defendant, further answering, says that in 
the month of May, sixteen hundred and sixty-six, what 
is now known as the city of Newark was first settled 
upon and occupied by persons who had that }-ear em- 
igrated hither from Connecticut, and that at the time of 
the said settlement, or within a short time thereafter, the 
said emigra'nts, who are now known as the early or old 
settlers, organized themselves into a regular independent 
government, but as this defendant believes, they acknowl- 
edged an allegiance to and in some way were subject to 



i6 

the -government of Great Britain, which then claimed 
sovereignty over all the territory included within ■ the 
boundaries of the State of New Jersey. That shortly 
after the place of the said settlement had been deter- 
mined and was located, it was laid out by the said early 
or old settlers into lots or plots, which they called home 
lots, which they divided among themselves and upon 
which they settled, as appears by the record thereof 
which they then made and which has since been pre- 
served. 

3. And this defendant, further answering, says that at 
the time of the said settlement, the said early or old 
settlers seized upon the said lands and took possession 
thereof, without the leave or license of any person what- 
soever. That prior to that time the said lands were wild 
and uncultivated, and were occupied and enjoyed only 
by the native Indians as hunting grounds, and had never 
been tilled or put to any useful purpose. That at the 
time the said early or old settlers entered into possession 
of the said lands they claimed the same, both in com- 
mon and in severalty, as their own by the right of pos- 
session and occupation, but that in order to secure a more 
perfect title and a better right to the lands of which they 
had taken possession, they very soon after their settle- 
ment and sometime during the year sixteen hundred and 
sixty-six, made a bargain with the said native Indians, by 
which the said native Indians conveyed to them all the 
lands which they had so occupied, and that subsequently 
and on the eleventh day of July, sixteen hundred and 
sixty-seven, for the purpose of securing a more perfect 
title and of enlarging and perfecting the said deed of six- 
teen hundred and sixty-six, they procured from the said 
Indians a second deed covering also the whole of the said 
lands, which was afterwards confirmed by a third deed 
from the Indians, dated on the thirteenth day of March, 
sixteen hundred and sixty-seven. And this defendant 



says that in .mcl by said deeds the said native Indians 
conveyed all the hinds now included within the limits of 
the city of Newark, to Obediah Brucn, Samuel Kitchell, 
Michael Tompkins, John Brown and Robert Denison, to 
them, their heirs and associates forever, to have, hold and 
dispose of without claim, let or molestation from the said 
native Indians, who in and by the said deed are recog- 
nized and named as the true proprietors and owners of 
the said lands and premises therein described. 

4. And this defendant, further answering, says that 
under the said original right acquired by settlement and 
possession as aforesaid, and under the deeds so obtained 
as aforesaid from the Indians, who had formerly been in 
possession of the said tract of land, the said early or old 
settlers and those who became associated with them had 
the unmolested and unrestricted right, title, use, occupa- 
tion and enjoyment of the said lands, and claimed the 
same by reason of such occupation and use, and of the 
title so obtained. That they laid out a town site within 
the bounds of the lands which were conveyed to them 
by the said native Indians, and called the same the town 
of Newark. Tliat in said town site they laid out certain 
streets and squares and public places, and that they made 
allotments among themselves of lands for individual use, 
reserving the streets, squares and public places for the 
common benefit of all the inhabitants of the town. That 
among the other portions so marked out and allotted 
was a tract of land now lying near the corner of Broad 
and Market streets in the said city of Newark, which 
was set apart for a church and burial place. And this 
defendant shows that the said tract of land lay on the 
west side of what is now called Broad street, and the 
south side of what is now called Market street, and was 
about seven chains in length along Broad street, and 
about four chains in width along Market street, and that 
it was bounded on the north and east by the aforesaid 
3 



18 

highways, on the west by a lot allotted to John Treat, 
and on the south by a lot allotted to John Johnson. And 
this defendant says that by virtue of the premises and of 
the original agreement made by the said early or old 
settlers with each other, the above described lot and 
every part thereof was the common property of all the 
inhabitants of the said town, and that they all had a 
common interest and a common ownership therein, and 
that such common rights were conceded and yielded to 
all the inhabitants of the said town. 

5. And this defendant, further answering, says that soon 
after the said settlement was made there was erected upon 
the said tract of land on the Broad street side, the only 
building in the said town for purposes of religious wor- 
ship, and in accordance with the original design of the 
said old settlers, the bodies of all members of the settle- 
ment who died were there buried. And this defendant 
says that from the earliest times all the inhabitants of 
the said town had a lawful right to enter upon the said 
tract and into the said building for the purpose of divine 
worship and for the purpose of interring their dead, and 
that there was no person or congregation of persons Avho 
had any right to refuse the same to any inhabitant of the 
said town. 

6, And this defendant, further answering, says that the 
form of government established by the said inhabitants 
of the town of Newark was a pure democracy, in which 
all the persons living in said settlement who had a right 
to vote were obliged to participate. That they kept and 
preserved the record of all the proceedings had at the 
regular and special meetings of the inhabitants, which 
were called town meetings, in a book which is called the 
town book, and which has been so kept and preserved 
since the earliest settlement. That in said town book 
are many references to the tract of land now in dispute, 
and many references to the manner in which the old set- 



19 

tiers held and claimed to hold the title to the lands 
which they occupied and enjoyed. And this defendant 
says that the said town book is now in the possession of 
this defendant, and that so far as the same contains any 
matters relevant to the issue in this suit, this defendant 
prays that it may refer thereto, or to the printed copies 
thereof issued by the New Jersey Historical Society. 

7. And this defendant, further answering, says that the 
form of local self-government originally adopted by said 
town, as above set out, was continued and carried on by 
the inhabitants thereof until the twenty-seventh day of 
April, seventeen hundred and thirteen, when all that 
tract of land then known by the name of Newark, and 
including the disputed tract, was created into a township 
by metes and bounds, to be known by the name of The 
Trustees of the Freeholders and Inhabitants of the Town- 
ship of Newark, by royal patent, which appointed the first 
trustees thereof, and that thereafter and until the year 
seventeen hundred and ninety-eight, the government of 
the said territory was conducted under the authority of 
that charter. That in the last named year the said terri- 
tory was created into a body politic and corporate in law, 
by the name of " The Inhabitants of the Township of 
Newark, in the County of Essex," and so continued until 
the year eighteen hundred and thirty-six, when the said 
territory was incorporated as a city by the name of " The 
Mayor and Common Council of the City of Newark." 

8. And this defendant, further answering, says that 
from the earliest settlement of the town of Newark, the 
tract of land now in dispute, or portions thereof, was 
used as a burying ground, and that interments were made 
in it from time to time of the bodies of persons who were 
inhabitants of the said town, and that for many years it 
was the only burial place within a convenient distance of 
the said settlement, but that whether the government 
was by the early inhabitants under their original consti- 



20 

tution and agreement, or under royal charter, or under 
the authority of the legislature of New Jersey, the said 
disputed tract of land has always been considered to be, 
and always has been common and public property, and 
has always been used by the public in common, and that 
the public had the exclusive control over and custody 
of the same, as will more fully appear by the proceedings 
in relation thereto, entered in the said town book ; and 
that among other things, as early as the year seventeen 
hundred and thirty-five, at a town meeting held by the 
inhabitants of the said town of Newark, it was resolved 
that the said burying place should be let out for pasture 
for cows ; it was so let out for pasture by the votes of 
the inhabitants in town meeting assembled, for many 
years thereafter and until the year eighteen hundred and 
fifteen, when the same was prohibited by a resolution 
passed in town meeting, and that whatever was done in 
relation to the old burying ground was made a matter 
of public business at the town meetings, and whatever 
moneys were expended thereon was expended from the 
public funds. 

9. And this defendant, further answering, says that 
the early or old settlers of the said town of Newark 
always assumed and supposed that the title to the lands 
so occupied and possessed by them depended upon their 
actual and adverse possession thereof, but that they 
recognized the fact that the native Indians who had oc- 
cupied and enjoyed the same before them had some sort 
of uncertain right therein, and that it was only for the 
purpose of strengthening their right, as against the said 
native Indians, and for the purpose of establishing friendly 
relations with them, that they negotiated with the said 
Indians for the title to the said lands, and took from them 
the deeds above mentioned. And this defendant says 
that they did not recognize the Proprietors of East Jersey 
as the owners of the soil occupied by them, but held 



adversely to the said proprietors, and that this is fully 
shown by the proceedings taken by the said inhabitants 
in their several town meetings, as is shown by the entries 
in the said town book. That very soon after the said 
settlement was begun the Proprietors of East Jersey laid 
claim to the lands occupied by the then town of Newark, 
and attempted to induce the inhabitants thereof to re- 
cognize their claim and title, and to pay to the proprie- 
tors quit rents at the rate of one-half penny a year for 
every acre of land occupied by the said inhabitants ; that 
the demand for the payment thereof was made a matter 
of public notoriety and of public business, and was re- 
sisted stoutly in public and in private. That so far as 
this defendant has been able to learn a demand was made 
upon the inhabitants by the Governor of the Board of 
Proprietors as early as the year sixteen hundred and sixty- 
nine, and that in reply to said demand, on the thirteenth 
day of February, sixteen hundred and sixty-nine, it was 
resolved by the said inhabitants, in town meeting assem- 
bled, that they would hold and possess their lands and 
rights in the said town, both by civil and divine right, as 
by their legal purchase and articles doth and may show, 
"and as for the payment of the half-penny per acre for 
all our alloted lands according to our articles, and interpre- 
tations of them, you assuring them to us, we are ready, 
when the time comes, to perform our duty to the lords or 
their assigns." But this defendant says that the demand 
so made was not complied with, and that the Proprietors of 
East Jersey did not at that time secure from the said in- 
habitants any recognition of their title, nor any rents for 
the lands occupied by them, nor of the lands held by 
them in common as aforesaid. 

lO. And these defendants, further answering, say that 
the settlement of the town of Newark aforesaid was orig- 
inally made witii the full knowledge of the Board of Pro- 
prietors, and in fact by their procurement and with their 



22 

consent ; that in sixteen hundred and sixty-five they for- 
mulated and made public a governmental constitution, 
which they called " The Concession and Agreement of 
"the Lords Proprietors of the Province of New Csesarea, 
" or New Jersey, to and with all and every the Adventur- 
" ers, and all such as shall settle or plant there," in which 
they offered large inducements to settlers within the prov- 
ince, and that it was in consequence of the inducements 
and promises therein set out that the said early or old 
settlers came from Connecticut to New Jersey to form 
their said settlement. And this defendant says that at 
the time of the said settlement the Proprietors of the 
Province of East Jersey were John Berkeley and George 
Carteret, who claimed to hold the title to all the land 
within the then province of New Jersey, by virtue of a 
royal patent granted by Charles the Second, King of 
England, to James, Duke of York, who conveyed or at- 
tempted to convey his interest and title therein by deed 
of lease and release to the said Berkeley and Carteret. 
And this defendant says that the said proprietors, Berk- 
eley and Carteret, in the year sixteen hundred and sixty- 
four, by commission, under their hands and seals, ap- 
pointed Philip Carteret, governor of the said province of 
New Jersey, during their will and pleasure, and that by 
an instrument in writing under the hands of said two pro- 
prietors, they gave to said Philip Carteret full and abso- 
lute authority to let, sell, convey and assume the lands 
which they claimed in New Jersey to any or all persons 
who should settle thereon. And this defendant says that 
the said Philip Carteret was fully cognizant of the said 
settlement, and in every way in his power assisted therein ; 
that he assisted the said early setters in their negotiations 
with the native Indians by writing them letters, and 
sending messengers to them to secure their friendship, 
and to aid the said early settlers in procuring the title to 
the said lands from them. And this defendant says that 



23 

the dcctls hereinabove mentioned were procured from said 
native Indians witli the full knowledge and consent of the 
said Philip Carteret, and that when the last of the three 
Indian deeds, which was confirmatory of the other two, 
came to be made, the execution thereof was acknowl- 
edged before the said Philip Carteret, who was present 
at the execution thereof and was assisting therein. And 
this defendant says that the action of the said Philip 
Carteret therein was, so far as the said early settlers and 
the lands occupied by them were concerned, an abandon- 
ment of any pretended title of the said proprietors therein, 
and that they took the same, including the lands now in 
dispute, freed therefrom. 

And this defendant, further answering, says that the 
said inhabitants were and had been in actual custody, 
possession and enjoyment of the said lands held by them 
in severalty and in common, including the tract of land 
now in dispute, for upwards of thirty years before any 
instrument or deed was made by the said proprietors for 
the said lands or any portion thereof, during which time 
the public had used the said burying ground and the 
lands adjacent thereto for the public uses of worship and 
burial of the dead, and had acquired a title thereto by 
possession and occupation, which was adverse to the title 
of the proprietors of the said land and every part thereof. 

II. And this defendant, further answering, says that 
the Board of Proprietors of East Jersey, for the purpose 
of confirming and making certain the title of certain of 
the lots which had been so settled upon and occupied by 
the old inhabitants, on or about the tenth day of Decem- 
ber, sixteen hundred and ninety-six, made, executed and 
delivered to John Curtis, John Treat, Theophilus Picrson 
and Robert Young, of the said town of Newark, a deed 
of conveyance for several tracts of land, among which 
are the premises in dispute, and therein described as 
follows : 



24 

" All that small tract alotted for the bureing place, take- 
ing in the pond and meeting house, being seaven chaines 
in length and foure chaines in breadth, bounded west by 
John Treat, south by John Johnson, north and east by 
highways." 

And that in and by said deed the said grantees were to 
have and to hold the said lands to the only proper use, 
benefit and behoof of the old settlers of the town of 
Newark aforesaid, their heirs and assigns forever, in com 
mon, and that the said lands were granted to be and 
remain for the several uses herein particularly expressed, 
and to be appropriated for no other use or uses whatso- 
ever. And this defendant says that at the time the said 
deed v/as made, acknowledged and delivered, the inhab- 
itants of the town of Newark were in actual possession 
of the lands thereby granted or intended to be granted, 
and that as a matter of fact and as a matter of law, the 
said deed was merely confirmatory of the title which the 
said inhabitants had already acquired in the said lands. 
That the said deed was made to the trustees therein 
named, for the reason that the inhabitants of the town of 
Newark were not incorporated, and as a body could not 
take the title thereto, but that it was not intended that 
the said deed should impose an unalterable trust upon 
the said lands, or impress upon them a perpetual use, but 
that on the contrary thereof, the words in the said deed 
which are relied upon by the complainant to establish 
the said use, are merely words of description, and are 
inserted in the said deed for the purpose of denoting the 
use to which the inhabitants of the said old town had 
put the said lands, and to designate them with absolute 
certainty. 

12. And this defendant, further answering, says that 
from and after the making of the said proprietors' deed, 
the said lands continued to be used by the public in the 
same manner and to the same extent as theretofore, and 



-5 



that in consequence of the doubts whicli had always ex- 
isted as to the right and title of the public in the said 
lands, and for the purposes of quieting the title thereto, 
the legislature, on or about the fifteenth day of February, 
eighteen hundred and four, passed an act, set out in the 
third paragraph of the bill of complaint herein. And 
this defendant states and charges the fact to be that by 
virtue of that enactment all prior disputes as to the legal 
title to the said lands were settled ; that thereby the town- 
ship of Newark became and was vested with the legal 
title to the tract of land now in dispute and with full 
control thereof, and that in pursuance of that act the said 
township of Newark, and afterwards the city of Newark, 
have had the legal title to and the possession of the said 
plot, and have of right exercised full and absolute con- 
trol over the same, and that subject to such limitations 
as were by that act put on their power in relation thereto, 
the said township and this defendant had a lawful right 
and the full authority to take such measures as were ex- 
pedient for the care and custody of the said grounds, and 
the preservation of the remains and monuments therein 
contained. 

13. And this defendant, further answering, says that 
the said old burying ground now lies in the heart of the 
city of Newark, and is surrounded by the most populous 
and most valuable portion of the city ; that no interments 
have been made therein for many years, and that on ac- 
count of the peculiar situation and location of the land 
the same has now and long since had become unsuitable 
for burials; that originally the whole plot was used in 
common by the people resident in the town for the pur- 
poses of worship and interment, but that as the land grew 
more and more valuable for business purposes, encroach- 
ments were made on the Broad and Market street fronts, 
which are now with a small exception covered by busi- 
ness buildings, in which large amounts of money are 
4 



26 

invested ; that in making such encroachments, the per- 
sons who claim to be owners of the said buildings, have 
actually erected buildings upon portions of the said land 
in which interments have been made, and that it has been 
impossible for this defendant to protect the said premises 
from desecration ; that it has been and is now open to 
the common use of the public, and is used as a rendezvous 
for immoral persons, and as a depository for rubbish and 
dirt, and for a long time has been a public nuisance ; and 
this defendant says that by virtue of its general control 
over the said grounds, and in pursuance of the terms of 
the act of 1886, it has determined that the general good of 
the community, and all considerations of respect for the 
memory of the early settlers of Newark, whose bodies 
are buried there, require that the use to which the said 
premises have been so long devoted should be determined, 
and that proper measures should be taken to care for the 
remains of the said deceased persons, and to perpetuate 
their memories. 

14. And this defendant, further answering, says that in 
pursuance of such determination, proper resolutions and 
ordinances to carry the same into effect were passed, after 
much public agitation of the questions involved, in and 
by the Common Council, in the public press, and by the 
public generally, and that this defendant prior to the 
filing of the bill herein, appropriated the sum of eight 
thousand dollars to purchase a plot in the city of Newark, 
in which to re-inter the said remains, and to procure a 
suitable monument to perpetuate the memories of the 
said deceased persons, and to enable this defendant to 
decently remove and properly re-inter the said bodies ; 
and that this defendant at the time of the filing of the 
bill had begun the task of the removal of said bodies, 
and had expended large sums of money in and about the 
said work, all of which will be lost unless this defendant 
shall be allowed to proceed therewith. And this defend- 



27 

ant says that the question of the advisabih'ty of the re- 
moval of the said bodies has been the subject of pubh'c 
discussion for several years past in the Common Council 
and in the newspapers, and that in the opinion of the Com- 
mon Council the time has now come when such a remo- 
val has become necessary. And this defendant says that 
only a small portion of the present population of the city 
of Newark have, by reason of the burial of their ances- 
tors therein, any interest in the said burial ground, and 
that it is manifestly for the benefit of the public at large 
that the said land should be put to some use to which its 
situation and location in the city make it more applicable 
than to burial purposes. 

15. And this defendant, further answering, says that 
the Common Council of the City of Newark has full dis- 
cretion under the act of eighteen hundred and eighty- 
six, in the management and control of the said burying 
ground ; that all that it has done or is about to do, and 
all the resolutions passed and adopted by the Common 
Council in relation thereto, are within the powers con- 
ferred by that act. And this defendant insists that this 
Court has no jurisdiction to enjoin this defendant or its 
servants and agents from removing the said bodies or 
from fully performing the work in that behalf which has 
been already begun. 

16. And this defendant, further answering, denies the 
allegations of the said bill in regard to the manner in 
which said act of eighteen hundred and eighty-six was 
passed ; and it denies that the same was introduced at an 
extra session of the legislature, and was hurried through 
with great rapidity, though if said allegations were true 
this Court is incompetent to make any inquiry into the 
same. But, on the contrary, this defendant says that this 
act was introduced and passed at an adjourned session of 
the legislature, and that the advisability of the passage 
of such a law was publicly discussed by the people of the 



28 

city of Newark, by newspapers, and by the Common 
Council, for months before the act was introduced into 
the legislature, and that the act in the form in which it 
now is was asked for by this defendant in its corporate 
capacity, in the firm belief that it is an expression of the 
wish of the people of the city in relation to the said 
matter. And this defendant denies that the said act of 
eighteen hundred and eighty-six is special or local in its 
character, or that it violates any of the provisions of the 
constitution ; but this defendant says that the said act is 
general in its character and objects, and is within the 
police power of the legislature. And this defendant says 
that after the said act had been passed by the legislature 
it went to the Governor for his approval, and was held by 
him for a long time, during which, this defendant is in- 
formed, the relators, or some of them, objected to the 
form and purpose of the act to the Governor, and pre- 
sented to the Governor oral and written arguments against 
the same, and that after the Governor had heard all ob- 
jections he refused to approve the act until he had seen 
the land, and that he came to Newark for that purpose, 
and made a personal inspection of the land in dispute, 
and subsequently signed his approval of the measure. 

17. And this defendant, further answering, says and 
admits that the Common Council of the city of Newark 
did pass a resolution providing for the use for the present 
of the said lands as a place for the sale of country pro- 
duce from wagons, but this defendant says in relation 
thereto that for many years past it has been customary to 
allow such produce to be sold from wagons along the line 
of Broad street, one of the principal thoroughfares of the 
city, and that the city authorities have not, and because 
of the great expense could not provide any other place 
therefor at the present time ; that this Court by its in- 
junction restrained this defendant recently from allowing 
said business to be carried on in the public streets of the 



29 

city, and that it was in consequence of such injunction 
that the Common Council decided to appropriate the old 
burj'ing ground to market purposes as aforesaid. But 
this defendant shows that such use was only intended to 
be a temporary expedient, and was expressed so to be 
in the resolution passed by the Common Council in rela- 
tion to the matter, and that it is the intention of this 
defendant eventually to purchase and provide in some 
other part of the city a plot of land suitable for a coun- 
try produce market, and that then the plot of land in 
dispute will be relieved therefrom. 

1 7 J. And this defendant, further answering, says that 
many years ago it became evident that it was not to the 
interest or advantage of the public that any further in- 
terments should be made in the said old burying ground, 
and the question of discontinuing the same was publicly 
discussed in the regular town meetings held by the in- 
habitants of the township of Newark, and that in further- 
ance thereof the township authorized its officers to pur- 
chase a new burying ground, and that such purchase was 
made in the year eighteen hundred and twenty-eight or 
thereabouts, with the public money, and that afterwards 
and on the thirteenth day of April, eighteen hundred 
and twenty-nine, a resolution was passed by the town 
meeting held on that day that in future no more inter- 
ments should be made in the old burying ground, and that 
notice of the resolution should be given by the town 
committee in the newspapers printed in the town. And 
this defendant says that after the passage of the said res- 
olution the use of the old burying ground for the pur- 
pose of interring the dead was practically, if not abso- 
lutely discontinued, and that since then there have been 
no interments therein. 

And this defendant charges and insists that the ground 
which had thus been devoted b)- the people to burial 
purposes had become wholly unsuitable for this purpose, 



30 

and that it was the right and duty of the town authori- 
ties to discontinue interments therein, and that it sub- 
sequently became necessary, for the protection of the 
health of the city, the preservation of public morals, as 
well as for the protection of the remains of the dead 
buried in these grounds, that they should be removed to 
a more suitable place for interment ; and being author- 
ized by the legislature to make such removal, this defend- 
ant charges that it has full power and authority to do so 
without regard to the question of title. That neither the 
old settlers or their descendants had any private rights 
in these grounds, or any rights arising out of contracts, 
and that the public authorities of the city had the right 
to remove the remains deposited therein whenever in 
their judgment the public good required it. 

1 8. And this defendant, further answering, says that 
among the other tracts of land which were intended to 
be conveyed by the Proprietors of East Jersey to John 
Curtis and others, by their deed hereinabove set out, was 
a tract of land described as follows : 

" Another triangle peece Alotted for a watering place 
for cattle, Begining at John Plum's corner and running 
up the brooke west seaven chaines ; thence east and by 
north seaven chaines to the highway, and at the east end 
one chaine three rodes, bounded south by John Plum, and 
Robert Daglish, North and East by highways." 

The title to which was vested in the inhabitants of 
Newark by the aforesaid act of eighteen hundred and 
four ; and this defendant says that the tract of land so 
allotted for a watering place for cattle was, by the said 
deed and the said act of the legislature, the property of 
the township of Newark aforesaid, and was in the same 
situation as was the tract of land in dispute in this cause, 
and that in order to enable the inhabitants of the town- 
ship of Newark to sell the same, the legislature of the 



3> 

State of New Jersey, on the twenty-eighth day of No- 
vember, eighteen hundred and nine, passed an act en- 
titled " An act to enable the inhabitants of the township 
of Newark, in the county of Essex, to sell a lot of land 
therein mentioned," of which the following is a copy: 

" Whereas, it is represented to the Council and Gen- 
eral Assembly, that a certain lot of land lying and being 
in the town platt of the township of Newark, in the 
county of Essex, known by the name of the watering 
place, is not at this time, nor has it been for many years 
last past, used for the purpose for which it was originally 
appropriated, nor is it any longer wanted for that use, 
and that the inhabitants of said township are desirous of 
selling the same, and disposing the money arising from 
the sale thereof to some other public use, and that as the 
law now is the said inhabitants have not authority, with- 
out legislative aid, to sell the same ; And whereas, appli- 
cation hath been made to the Council and General Assem- 
bly in behalf of the inhabitants of the said township, in 
conformity to vote of the said inhabitants of the said town- 
ship, passed at the annual town meeting in April last past, 
for the law to enable them to sell and dispose of said land 
in fee simple ; therefore, 

*' Six. I. Be it enacted by the Council and General As- 
sembly of this State, and it is hereby enacted by the au- 
thority of the same, that the inhabitants of the township 
of Newark, in the county of Essex, are hereby author- 
ized and empowered to sell and dispose of in fee simple, 
a certain lot of land lying and being in the town platt of 
the township of Newark, in the county of Essex, which 
lot is included in a grant from the Proprietors of East 
New Jersey, to John Curtis, John Treat, Theophilus 
Pierson and Robert Young, for the use of the old settlers 
of the town of Newark, bearing date the tenth day of 
December, in the year of our Lord one thousand six 
hundred and ninety-six, in which grant the said lot of 



32 

land is denominated a ' watering place for cattle,' and is 
described as a triangular piece, bounded south by John 
Plum and Robert Daglish, and east and north by high- 
ways. The legal title to the said lot of land among other 
lands contained in the said grant, being vested in the 
inhabitants of the said township of Newark, in the county 
of Essex, as incorporated by law, a certain act of the leg- 
islature of the State of New Jersey, passed the fifteenth 
day of February, in the year of our Lord eighteen hun- 
dred and four. 

" 2. And be it enacted, That it shall and may be law- 
ful for the members of the township committee of the 
said township of Newark, in the county of Essex, for the 
time being, they being thereunto hereafter authorized by 
a vote of the inhabitants of the said township of Newark 
at an annual meeting, to execute under their respective 
hands and private seals, in the name of the inhabitants 
of the said township of Newark, proper deed or deeds of 
conveyance in fee simple to the purchaser or purchasers 
of said land, which deed or deeds of conveyance so made 
and executed shall convey to and vest in the purchaser 
or purchasers all the right, title and interest of the inhab- 
itants of the said township of Newark, of, in and to the 
said land forever. 

" 3. And be it enacted, That the monies arising from 
the sale of the said land shall be laid out and expended 
by the township committee of the said township of New- 
ark for such public permanent purposes, in the town platt 
of the said tov/nship of Newark, after paying to the town 
committee of the township of Orange such proportion- 
able part of five hundred dollars heretofore expended in 
law-suits for the recovery of the before mentioned town 
lands, as shall appear to have been paid by the inhab- 
itants residing in the district now the township of Orange, 
and formerly a part of the township of Newark, afore- 
said, to be ascertained on comparing the duplicates of 



33 

ratcablcs of each of the said townships of Newark and 
Orange of the present year, eighteen hundred and nine, 
as the inhabitants of the said township of Newark in an 
annual or other lawful town meeting shall order and 
direct, on ten days' notice having been given in the pub- 
lic papers printed in the said town of Newark, of an in- 
tended motion to be made in said town meeting for that 
purpose, pointing out the particular object of the said 
motion, provided that the inhabitants of the said town- 
ship of Newark in lawful town meeting assembled, may 
in case they shall think proper so to do, apply five hun- 
dred dollars, including the payment to the township of 
Orange as aforesaid, out of the monies arising on the sale 
of the poor, or other lawful expenditures of the said 
l(^wnship. that sum ha\'ing been heretofore expended by 
the said township in law-suit respecting the said land." 

19. And this defendant says that by virtue of the said 
act, the town committee of the said township of Newark 
divided the said watering place into suitable sized lots and 
sold the same for the sum of fifteen hundred dollars, and 
made title thereto to the several purchasers thereof. 
And this defendant says that the said plot of land known 
as the watering place, was held by the public in the same 
manner in which the said tract of land in dispute was then 
held, and is now held, and that no one ever questioned 
the right of the legislature or of the township authorities 
to make the disposition of the said tract which they did 
make. And this defendant says that the action of the 
legislature and of the public in relation to that land is a 
precedent for what is now claimed by this defendant in 
this suit, and is a practical construction of the rights of 
the public in relation thereto, and that it is not now com- 
petent for the Attorney-General or for the relators named 
in the bill of complaint herein to question the same, or 
tt) interfere with the action of this defendant, which has 
been determined on as aforesaid. And this defendant. 



34 

further answering, says that the legislature of this State 
in the exercise of its sovereign power, has full right to 
discharge any lands which have been devoted to special 
or particular public uses, and to authorize a change in 
the use thereof, and that the legislature of this State has 
exercised this right, and has authorized the sale of lands 
held not only by the public but private corporations for 
particular uses, freed and discharged from any trust in a 
great number of instances, as will appear by a reference 
to the public laws of this State, published by the au- 
thority of the State, to which this defendant begs leave 
to refer. And this defendant, further answering, says 
that the exhibit hereto annexed marked "A," shows the 
" Home Lots " of the old settlers as they were laid out 
and allotted as shown by the town records or town book 
before referred to, and the lot set apart for a burial place 
now called the " old burying ground," which lot is thereon 
designated as lot " A," and that Exhibit " B," hereto an- 
nexed, which is made from actual surveys and measure- 
ments, shows the " old burying ground," as it now is, with 
the encroachments that have been made thereon ; that the 
part thereof colored in blue is now in the possession and 
occupation of persons or corporations, claiming to be 
the owners thereof, and to have absolute right and title 
thereto ; that the names of the persons claiming such 
title and ownership are shown thereon, as far as this de- 
fendant has been able to learn the same, and that lines 
indicating their present possessions are correctly shown 
on said exhibit. 

And this defendant further shows, that the ground thus 
occupied and claimed by said persons covers a large part 
of the tract originally set apart for the burial place, as 
shown on Exhibit "A," and that as matter of fact the 
buildings erected on these lots, so owned and claimed, 
occupy a part of the ground in which interments were 
formerly made, and that in making excavations for the 



said buildings, the remains of bodies interred in what was 
originally set apart for a burial place by the old settlers, 
as before stated, have been removed in many instances. 

And this defendant, further answering, says that it has 
no knowledge, except from said bill, whether the relators 
are, or whether any of them are heirs or descendants of 
any of the old settlers, and leaves them to make such 
proof thereof as they may be advised is necessary; but 
this defendant says that if they are such heirs, that the\' 
have by virtue of their relationship no right in the prem- 
ises as cestuis que trust or otherwise, and that they have 
no standing in this Court as complainants or relators. 

And this defendant, further answering, says that the 
Attorney-General has no standing in this Court as the 
representative of the State, to seek to enjoin this defend- 
ant as prayed in the said bill ; that the State has by its 
legislature given to this defendant express authority to 
do the acts complained of, and can only revoke this 
authority or interfere with its exercise by an act of the 
legislature. And this defendant prays that it may have 
the same benefit of this defence as if it had demurred to 
the said bill. 

This defendant, therefore, claims that it is proceeding 
strictly according to law ; that it is not violating any 
private right, or neglecting any public duty in what it 
has done or proposed to do in the premises, but that in 
the removal of these remains, and their decent and proper 
interment in a suitable and proper place, it is moved by 
considerations alike respectful to the dead, whose bones 
have been so long neglected and insulted, and to the 
living, in removing what has long since become a public 
nuisance ; and it prays that it may be hence dismissed 
with costs. 

JOSEPH E. HAYNES, ilfrtj^r. [l. s.] 

JosKPH COULT, City Counsel. 
Attest : 

S. H. I'KMHKRTON, City Clcrk. 



In Chancery of New Jersey. 

February Term, 1887. 

Between 
John P. Stockton, Attorney-General, 
AND others, 

V. 

The Mayor and Common Council of 
THE City of Newark. 



Opinio)!. 



Bill for injunction. On order to show cause upon bill 
and a,nswer. 

Messrs. CoRTLANDT & Wayne Parker, for relators. 
Mr. Joseph Coult, for defendants. 

The Chancellor : This suit is brought by the At- 
torney-General by information, at the relation of Henry 
Congar and others, and by the relators as complainants, 
against The Mayor and Common Council of the City of 
Newark, to establish a trust in certain land in Newark, 
known as " The Old Burying Ground," and to restrain 
the defendants from removing from that land the remains 
of persons buried there, and to compel the defendants to 
keep and maintain the ground in decent and proper order 
so as to protect the remains and memorials therein from 
desecration. The bill states that the relators and com- 
plainants are citizens of Newark, and heirs and descend- 
ants of the old settlers of the town of Newark, and they 
bring suit not only for themselves but also for the benefit 
of all such other citizens, heirs and descendants as may 
be made parties, and for the protection of the charitable 
use to which the burying ground was, as they allege, 
devoted. 



37 

The bill states that on the tenth of December, 1696, 
shortly after the settlement of the town, the Proprietors 
of the Province of East New Jersey, in pursuance of the 
concessions to actual settlers thereof theretofore made by 
them, granted to John Curtis, John Treat, Theophilus 
Pierson and Robert Young, of the town of Newark, cer- 
tain parcels of land in Newark for public use, among 
which was a tract including the land in question, which 
tract is described in the deed as " all that small tract 
therein alotted for the bureing place, takeing in the pond 
and meeting house, being seaven chaines in length and 
foure chaines in breadth, bounded west by John Treat, 
south by John Johnson, north and east by highways;" 
that as to that land the grant was made and was in the deed 
declared to be made, to the grantees and their heirs, to the 
only proper use, benefit and behoof of the old settlers of 
the town of Newark, their heirs and assigns forever, in 
common, and that it was also therein declared that the 
land was granted to be and remain for the use in the deed 
expressed and to be appropriated to no other use or uses 
whatever. The complainants allege that the greater part 
of that tract was then and thereafter used for and devoted 
to the use of a burial place for the people of the town, 
those who settled the place, the old settlers, and their heirs 
and assigns, and that it has been reserved and kept for 
such purpose, and has been known as " The Old Burying 
Ground," and that there have been buried in it from time 
to time deceased persons, people of the town, old settlers, 
and their heirs and descendants, and that the memorials 
of such deceased persons have been erected there, and that 
some of them still remain ; that about the fifteenth of 
February, 1804, the legislature of the State, for the pur- 
pose of vesting the legal estate in the property upon the 
same trust and to the same use upon and to which it had 
been granted, passed an act by which it was recited that 
the inhabitants, the first settlers of Newark, on their first 



3S 

settlement, after purchasing all the lands lying within the 
bounds of the town of the native Indians, proceeded to 
parcel them out among themselves and such settlers as 
thought proper at various times to settle in the town, ac- 
cording to the rules and regulations established by the 
first settlers respecting their admission, at the same time 
reserving certain portions of land in various parts of the 
town for public purposes ; and that doubts having arisen 
as to the validity of the Indian title, it was afterwards 
thought advisable by the inhabitants of the tov^-n to take 
a grant from th-e Proprietors of East New Jersey for the 
confirmation of their rights to that public land, and that 
as the inhabitants of the town were not incorporated, and 
were incapable of taking a legal estate, it was thought 
advisable to take the grant in the names of certain trus- 
tees for the use of the inhabitants, which grant was ac- 
cordingly taken on the tenth of October, 1696, in the 
names of John Curtis, John Treat, Theophilus Pierson 
and Robert Young, to have and to hold to them, their 
heirs and assigns forever, to the only proper use, benefit 
and behoof of the old settlers of the town, their heirs 
and assigns forever, in common, (the lands) granted to be 
and remain to and for the several uses therein particu- 
larly expressed, and to be appropriated to no other use or 
uses whatsoever ; that the original trustees were all dead 
and the heir of the survivor not known to be resident in 
Newark, and that through the ignorance of those infant 
times the use created in the grant, although reaMy meant 
for the benefit of the inhabitants of the town of Newark 
and their successors, yet was so inartificially expressed as 
to render it difificult for the then inhabitants of the town, 
as incorporated by law, to assert their rights to the prem- 
ises ; by means whereof the lands contained in the grant, 
and originally reserved by the first settlers for public pur- 
poses, were exposed to encroachments and other injuries 
without a competent remedy therefor, either in law or 



39 

cquit)-, .iiid it was tliercby enacted that the trust estate 
vested in the trustees, their heirs and assigns forever, by 
the deed from the proprietors, for the only proper use, 
benefit and behoof of the old settlers of the town of 
Newark, their heirs and assigns forever, should thence- 
forth cease and be void, and that the estate so vested in 
those trustees, their heirs and assigns forever, should be 
vested in the inhabitants of the township of Newark, in 
the county of Essex, as incorporated by law, and their 
successors forever, and that they were thereby vested 
with the legal title thereto as fully and absolutely as 
though they had been originally named in the grant in 
the place of the original trustees, saving the rights of 
bona fide purchasers, without notice of the trust ; pro- 
vided that nothing in the act should in any way extend 
to or affect the parsonage lands described in the grant, or 
such parts of the burying ground as had been leased or 
sold by the First Presbyterian Church in Newark, before 
the first of January then last, or the ground upon which 
the market then stood. And it was thereby further en- 
acted that the estate vested by the act in the inhabitants 
of the township should be appropriated and forever 
remain to and for the several uses in the before mentioned 
original patent (the deed from the proprietors) expressed, 
and for no other use or uses whatsoever. The bill further 
states that in eighteen hundred and thirty-six the city 
was incorporated, and thereupon, by force of the laws of 
this State, became subject to all the responsibilities of 
the township and succeeded to the duties of the inhab- 
itants of the township as trustees ; that it thus obtained 
the legal title to the land in question, and that it was its 
duty to protect and preserve the property to the uses to 
which it was originally devoted, but that it has not only 
neglected its duty in tliat behalf, but now proposes to 
remove the remains from the ground and devote the land 
to use as a public market, for the sale of meat and vegeta- 



40 

bles. and to let it out for hire for those purposes accord- 
ingly, and that its action in the matter is under an act of 
the legislature passed in eighteen hundred and eighty-six, 
and obtained by the city itself, by which it was enacted 
that where lands held by the cities or municipalities of 
this State for burial purposes, are or may be affected by 
any trust that they shall be devoted to that use, and in 
the judgment of the Common Council, or other govern- 
ing body, the public good will be served by devoting such 
lands to other public uses, it shall and may be lawful in 
every such case to use such lands for any public purpose 
or use to which in the judgment of the Common Council, 
or other governing body, they are best adapted ; and that 
in case interments have at any time been made in such 
lands, or any part thereof, the Common Council or other 
governing body shall cause the remains so interred to be 
removed to some suitable and proper burial place, and 
make proper and reasonable provision therefor and for 
the protection thereof, and to that end may make such 
reasonable appropriation of public moneys as may be 
necessary. 

The bill attacks that act upon the ground that it is 
really a private, special and local law within the meaning 
of the constitution, and alleges that there are no other 
cities or municipalities in this State, except the city of 
Newark, which hold land in trust for burial purposes ; 
that no public notice was given of the intention to apply 
for the act nor of the object of it, and that the passage 
of the act was forbidden by the constitution of this State, 
because of the want of such notice and because the act 
vacates public grounds. 

The answer states that first settlers came in Ma}% 1666; 
that soon after they came they laid out the land of which 
they had taken possession without leave or license, claim- 
ing it by occupation, and divided it among themselves 
into what they called home lots ; that in order to secure a 



41 

more perfect title they bought the land from the Indians 
and took from them three conveyances therefor, one in 
1666, and the others in 1667 ; that in laying out the town 
site they reserved streets, squares and public places for 
the common benefit of the people of the town ; that 
among the portions so allotted was the tract set apart 
for a church and burial place, and that that was common 
property; that soon after the settlement the only build- 
ing for religious worship in the town was built upon the 
property, and that in accordance with the original design 
of the settlers the bodies of all the settlers who died were 
there interred, and that the property was common to 
all the inhabitants — the meeting house for worship and 
the burying ground for interment; that up to 1713 the 
form of government of the town was a pure democracy, 
in which all who lived in the settlement and were entitled 
to a vote were obliged to participate ; that in that year 
the inhabitants of the tract then known as the town of 
Newark were incorporated by royal patent, by the name 
of the " Trustees of the Freeholders and Inhabitants of 
the Township of Newark," and the government was thence 
forward to 1798, carried on under that charter; that in 
the last mentioned year the township was incorporated, 
and that the city was incorporated in 1836; that from 
the earliest settlement the land in dispute or portions 
thereof were used as a burying ground and interments 
were made in it from time to time of the bodies of per- 
sons who were inhabitants of the town, but that it was 
always common property under the control of the public ; 
that the settlers denied the right of the Indians, although 
they took the before mentioned deeds from them, and 
they denied the right of the proprietors, and they held 
possession for over thirty years before they took from the 
proprietors the deed mentioned in the bill, which they 
took as a merely confirmatory conveyance ; that it was 
not intended that that deed should impose any unalter- 



42 

able trust upon the property in question, or impress upon 
it a perpetual use, but the answer alleges the words relied 
upon in the bill to establish the use are merely words of 
description, denoting the use to which the inhabitants of 
the town had put the land, and were used in order to 
designate them with absolute certainty; that after the 
making of the deed of the proprietors the land continued 
to be used by the public in the same way and to the same 
extent as before that time, and that in consequence of 
the doubts which had always existed as to the right and 
title of the public thereto and to quiet the title, the act 
of 1804 was passed ; that subject to such limitations as 
were by that act put upon its power, the city had a lawful 
right and full authority to take such measures as were 
expedient for the care and custody of the grounds, and 
the preservation of the remains and monuments therein ; 
that the tract lies in the heart of the city, and is sur- 
rounded by the most populous and valuable portion of 
the city ; that no interments have been made there for 
many years, and that on account of the peculiar situation 
and location of the property it has now become unsuit- 
able for burials ; that originally the whole of it was used 
in common by the people of the town for purposes of 
worship and interment, but as the land grew more and 
more valuable encroachments were made upon the Broad 
and Market street fronts, which are now, with a small ex- 
ception, covered with business buildings in which large 
amounts of money are invested ; that in making such 
encroachments the persons who claim to be the owners of 
the buildings have actually erected them upon parts of the 
land in which interments were made, and that it has been 
impossible for the city to protect the property from des- 
ecration ; that it has been and is now open to the com- 
mon use of the public, and is used as a rendezvous for 
immoral persons and as a depository for rubbish, and for 
a long time has been a public nuisance, and that by virtue 



43 

of its general control over the grounds and under the 
terms of the act of 1886, the city has determined that 
the general good of the community and all considerations 
of respect for the memory of the early settlers of New- 
ark, whose bodies are buried there, require that the use 
to which the premises have been so long devoted should 
be determined, and that proper measures should be taken 
to care for the remains of those deceased persons, and to 
perpetuate their memories ; that the city proposes to re- 
inter the remains to be removed in an appropriate place 
and erect a suitable monument over them ; that it pro- 
poses to occupy the land for a market, but only tempo- 
rarily, and that it intends to get another place for such 
market hereafter and to relieve the land in question from 
use as a market place. 

It is evident from the foregoing full staterr\ent of the 
main contents of the pleadings that the city has no title 
to the land in question except such as it may have under 
the act of 1804, ^^^ ^^^^ charter which provides that the 
Mayor and Common Council and their successors shall, 
by virtue of their charter, become and be absolutely and 
completely vested with, possess and enjoy all the lands, 
tenements, hereditaments, property, rights, causes of 
action and estate whatsoever, both in law and equity, in 
possession, reversion or remainder, which at the time of 
the passing of the charter were vested in the township as 
a corporation, according to such estate and interest as 
the township as a corporation at the time of the passage 
of the charter had or of right ought to have therein. 
P. L. i8j6, p. 185, and P. L. 1857, P- "7- ^^ '^^^ ^'^^^^ 
to the land was held by the township under the act of 
1804, merely in trust for the purposes of the charity, 
(use as a burial ground,) the city holds it in like manner 
and upon the same trust. But it is urged by the answer 
that the city holds it irrespective of the act of 1804, as 
public property generally, without the impress of a trust 



44 

or devotion to any particular use upon it. This claim 
cannot be sustained. How did the city get title if not 
under the act of 1804? And what title has it except 
such title .'' 

Before that act the title was in the grantees under the 
deed from the proprietors or the survivors or survivor of 
them, or the heir at law of the last survivor. If it be 
conceded that the Indian title is valid, the city has no 
title to the land under it. 

If the land was dedicated to public use as a burying 
ground by the old settlers, the power of the city over it 
under such dedication is only for the protection and reg- 
ulation of the public use. It cannot sell the land nor 
release or extinguish the use for which the land was ded- 
icated, nor employ it in any way variant from the purposes 
for which ^it was designed. Trustees, &c., v. Hoboken, 
4 Vroom, 13. Under the act of 1804, the title was vested 
in the township as a corporation, to be appropriated and 
forever remain to and for the several uses expressed in 
the deed from the proprietors, and for no other use or 
uses whatever. 

The city, if it took the title under that act and its 
charter, took it subject to that provision and with that 
trust impressed upon it. In Montpelier v. East Montpelier, 
27 Vroom, 704, it was held that land held in trust by the 
original town of Montpelier did not pass to the new towns 
of Montpelier and East Montpelier, created out of the 
territory of the original town, (the Court held that by 
force of the provisions of the act the original town ceased 
to act,) although the act provided that all property then 
owned and possessed by the original town should be 
thereafter owned and enjoyed by the new towns in cer- 
tain proportions. The city then, if it holds the title in 
trust, holds it for the use of the property as a burying 
ground and for no other use whatever, unless the act of 
1886 has given it the power to abolish the use. 



45 

That act is an act to destroy the trust. If it be con- 
ceded that there is no valid objection to it on the grounds 
mentioned in the bill, (a subject which it is not necessary 
to pass upon at this time,) and the act be regarded as a 
general law, it may be characterized as an enactment em- 
powering the municipal authorities at will to destroy the 
trusts in all such cases. As such, it is in my judgment 
unconstitutional. It is not within the power of the leg- 
islature to abolish such trusts as that on which the city, 
if it has title to the old burying ground, holds that prop- 
erty. It is established law that if a grant is made to a 
municipal corporation charged with a trust in favor of an 
individual, private corporation or charity, the interest 
which the cestui que trust or beneficiary has under the 
grant, may sustain it against legislative revocation ; a 
vested equitable interest being property in the same sense 
and entitled to the same protection as a legal interest. 
Coohy Const. Lim. 278. It Montpclier v. East Montpelier, 
29 Vroom, 12, it was said that grants of property to 
municipal corporations in trust for other purposes than 
corporate and municipal use, are no more the subject of 
legislative control than are the private and vested rights 
of individuals. It is urged on behalf of the city that 
this act may be supported under what is known as the 
police power of the legislature, by virtue of which it may, 
to protect the health of the public, exercise directly or 
by delegating it to the municipality, the power of direct- 
ing the removal of bodies from a graveyard. It is enough 
to say on this head that the act is not an exercise of that 
power. According to the answer it may be remarked, no 
interments have made in the ground in question for nearly 
sixty years. 

The act provides that when lands held by the cities 
and municipalities of the State for burial purposes are 
or may be affected by any trust that they shall be de- 
voted to that use, and in the judgment of the Common 



46 

Council or other governing body, the public good will be 
served by devoting such lands to other public uses, it 
shall and may be lawful in every such case to use such 
lands for any public use to which, in the judgment of the 
Common Council or other governing body, they are best 
adapted. 

This is not a grant based upon the power to prevent or 
abate nuisances, but construed as the defendants construe 
it, it is a gift of power to the Common Council or other 
governing body to put (entirely at their discretion) land 
granted to the municipality in trust for burial purposes, 
whether located in or out of the city or municipality, to 
any or other public use to which they may think it best 
adapted, and that, too, without reference to any consid- 
eration of the public health to justify it. Nor can it 
justly be claimed that in view of the fact that no inter- 
ments have been made for so long a period (since 1829) 
the use has ceased. The object of burial is not to put 
the dead away temporarily merely, but to place them in 
a final resting-place. 

When land is given in trust for a burial place it obvi- 
ously can by no means be said that the trust is at an end 
when the last body which can be buried in it has been 
deposited. The expectation in the burial of the dead is 
that they are to remain permanently, and the unauthor- 
ized disturbance of their remains is regarded with abhor- 
rence as a desecration, and is criminal. 

In Campbell v. Liverpool, L. R. 9 Eq. A trust for a 
burying place devotes the ground to the perpetual repose 
of the remains of the dead. It dedicates it to uses of the 
most sacred character. The burying ground is God's 
acre. 579, by act of Will. 3, land belonging to the parish 
of Liverpool was set apart and dedicated to the use of a 
burial ground, and by the sentence of consecration the 
corporation renounced all right to the land. In 1854 the 
ground was closed against burials by an order in council. 



In 1866 the corporation being authorized to take a part 
of the ground under an improvement act refused to pay 
for the land to be taken, on the ground that the land re- 
verted to the corporation on the closing of the ground 
against burials, and that on such closing the use came to an 
end : it was held that the land had been dedicated forever 
to the use of a burial ground, that there was no reverter to 
the corporation, and the Court would, if necessary, pre- 
sume a conveyance of the legal estate. 

See also Mor eland v. Richardson, 24 Beav. 33. Mani- 
festly the fact that the place in question has become a 
nuisance from the neglect by the city of its duty to take 
proper care of it is no reason why it should now be per- 
mitted to go still further and destroy the use altogether. 
By an act of March 3d, 1848, (P. L. 1848, p. 152,) the 
fact that the city had authorized or permitted encroach- 
ments upon the ground was recognized, as also the fact 
that it derived revenue for such encroachments, and it 
was provided that it should be the duty of the Mayor 
and Common Council to protect and preserve the ground 
as then enclosed and the enclosures thereof. It may be 
added that the nuisances mentioned in the answer are all 
of them such as the city may prevent. 

An injunction will be allowed according to the prayer 
of the bill. 



48 



A charitable use, derived from the public, vested in trust in a 
municipality, it also being the beneficiary, may be transmuted to 
other municipal purposes, with the sanction of the legislature. 

If the trustee of a charitable use be about to alienate or trans- 
form the property so as to carry into effect, in the most reasonable 
manner, the object of the grant, such act will not be enjoined. 

New Jersey Court of Errors and Appeals. 

March Term, 1888. 

The Mayor and Common Council of \ 
THE City of Newark, / 

and ^PP'^^^^^A opinion of 

( Chief Justice. 
Stockton, Attorney-General, et al.\ 

Respondents, f 

The facts of the case will be found fully stated in the 
opinion of the Chancellor. 

Joseph Coult, for appellants. 

Cortlandt Parker, for respondents. 

Beasley, C/i. Justice. For the purpose of perspicuity 
it is necessary to define the status of those who appear 
upon the record as the promoters of this proceeding. 

The bill purports to be exhibited as an information by 
the Attorney-General, at the instance of sundry private 
prosecutors, and yet, although wearing this plainly public 
aspect, it was sought to sustain the suit, in part, on the 
basis of the existence of purely private rights of prop- 
erty. The prosecutors both in the bill and in the argu- 
ments of their counsel, were presented to the Court as 



49 

the defendants and heirs of the " old settlers of Newark," 
whose bodies rest in the burying ground in question, and 
it was contended that these " old settlers," and the pros- 
ecutors by privity of blood, were the owners of the dis- 
puted premises for the purposes of sepulture. 

But this position is conspicuously untenable. If it 
were well founded it would, in toto, confound the present 
procedure, for the Attorney-General, in view of such a 
case, would have no place in it ; the suit of itself would 
fall to pieces for want of coherence between its incon- 
gruent parts. 

But, in truth, when we look beneath the surface of the 
case there does not appear the least semblance of private 
ownership in these parties. The claim was founded on 
the fact that the deed from the proprietors vests this 
property as a place of burial in trust for the " old settlers " 
of Newark, it being averred that such " old settlers " were 
a definite class of persons, and the Court was referred to 
the town records where they were named. 

But this construction is based on an unwarranted as- 
sumption ; it treats the description of the cestui que trust, 
as a fixed number of individuals, as much so as though 
designated by name. Such an interpretation seems illegit- 
imate, for it converts the phrase, "old settlers" into the 
entirely different phrase of " first settlers." If one could 
go outside of the terms of the deed and look for the in- 
tention of the parties, the inference would be strongly 
against the idea that the purpose was to give the benefit 
of the grant to the original founders of the town alone. 
The first inhabitancy appears to have occurred about the 
year 1666, and this trust deed was taken in 1696; and it 
cannot, therefore, reasonably be presumed that it was the 
design of those who were inhabitants at this later period 
to invest those of the earlier period with the entire ben- 
efit of the land thus acquired. Such inhabitants might 
well understand that the expression, *' old settlers," em- 
7 



50 

braced them as well as those settlers who had somewhat 
the precedence of them in point of time. 

The truth is, this description of the cestui que trust in 
this instrument, instead of being thus demonstrative of a 
fixed class of persons, is in fact so indefinite as to its 
beneficiaries as to raise grave doubts with respect to the 
legal efificacy of the grant itself. Regarding the convey- 
ance as an attempt to create either a private estate or a 
public charity, the intended recipients of the beneficial 
interests must, in the first case, be demonstrably certain, 
and in the latter capable of ascertainment. But who can 
say who the "old settlers of Newark" were? Were they 
those who became inhabitants during the first month of 
the settlement, to the exclusion of those who became 
such during the second month ? Or does the description 
embrace those who settled there in the first year, but not 
the incomers of the next year? 

But it is not necessary further to press this inquiry, for 
it is certain that, if these prosecutors had succeeded in 
establishing that their ancestors, being a definite number 
of ascertained persons, together with their heirs, were the 
exclusive beneficiaries of this use of the property in ques- 
tion, they would have demonstrated the absolute worth- 
lessness of this deed from the proprietors. It is very 
plain that when land is conveyed in fee to certain persons 
and their heirs to be used forever as a burial place, that 
thereby a charitable use is not created. In order to con- 
stitute such latter interest the objects of the gift must be 
indefinite. It has been said that a public charity begins 
where uncertainty in the recipients begins. 2 Perry on 
Trusts, Sec. 687. Such gifts are sustained for the reason 
that they enure to the public benefit. But a donation to 
certain named persons and their heirs is altogether a pri- 
vate concern, to be tested and regulated by the ordinary 
rules of law. When land is devoted forever to a use that 
the law recognizes as a charitable one, the transaction is 



5' 

sanctioned and sustained ; but when so devoted to a pri- 
vate use, it is absolutely repudiated, being deemed hostile 
to that important rule of public policy that prohibits the 
fettering of property beyond certain prescribed limits. 
The language of the books is, that " A trust cannot be 
created that will suspend the absolute ownership of the 
property for a longer time than that allowed by law. A 
perpetual trust cannot be created for an individual and 
his heirs in succession forever ; and herein a charity dif- 
fers, for a trust may be established which contemplates 
the payment of the income of a certain fund to some 
charitable purpose forever." 

In view of this thoroughly established principle, it is 
clear that there can be found no legal basis for this bill 
in this claim of a private right in this land vested in the 
prosecutors. 

Nor is the case in this respect strengthened by the fact 
that the bodies of the ancestors of these prosecutors were 
permitted to be buried in this cemetery. Such a circum- 
stance does not confer on the descendants of such persons 
the right to intervene and prevent the property from 
being devoted, when necessity or convenience calls for it, 
to other purposes. The cases are numerous and uncon- 
tradictory settling the law in this way, so that it is super- 
flous to refer to them or to discuss the subject. Many of 
them have been collected in the brief of the counsel of 
the appellee. 

It was deemed that this branch of the controversy pre- 
sented no question of difificulty, and it has been thus 
briefly considered in order to eliminate it from the discus- 
sion of the real point that calls for the judgment of this 
Court. 

The ex-Chancellor, who decided the case in equity, ex- 
pressed the view that the premises in question are de- 
voted to a charitable use, and in this theory this Court 
entirely concurs. The supervening and single question 



52 

is, whether such use can be abrogated by legislative 
action, and the lands appropriated to other public pur- 
poses. 

In order properly to apply such legal and equitable 
principles as are pertinent, it is necessary to comprehend 
accurately the juncture of events and facts forming the 
constituents of the problem to be resolved. 

This is the situation. The early inhabitants of the sec- 
tion, which for the sake of brevity will be called Newark, 
organized themselves into a government. They became 
a regulated community, introducing, by general consent, 
such regulations and political apparatus as were necessary 
to the order and well-being of such an establishment. 
Being thus a government de facto, in that capacity they 
acquired by purchase from the Indians an extensive tract 
of land, in which was included the premises in dispute. 
Such acquisition was in part distributed among them- 
selves, in part alienated to new comers and in part de- 
voted to public uses. In the progress of time becoming 
dissatisfied with their title they applied to the proprietors 
for its ratification ; the result being the making of the 
conveyance that has given rise to the vexed question in 
this case. This instrument bears date loth December, 
1696. It is important that its contents should be care- 
fully noted. In the first place it conveys several tracts of 
land, being allotted as a parsonage ; the premises in dis- 
pute which are described as being a small tract of land, 
" Allotted for the burying place ;" third, " A triangle piece 
allotted for a market place;" fourth, "A triangle piece 
allotted for a training place ;" fifth, another " Triangle 
piece allotted as a watering place for cattle ;" and lastly, 
" The streets of the said town of Newark, as they are 
now laid out." The town not being incorporated, the 
conveyance was to four designated townsmen in fee, " To 
the only proper use, benefit and behoof of the old settlers 
of the town of Newark, their heirs and assigns forever in 



53 

common ; granted to be and remain to and for the several 
uses herein particularly expressed, and to be appropriated 
to no other use or uses whatsoever." The instrument is 
a deed of bargain and sale and is for a valuable consider- 
ation. 

The deed from the Indians had been taken in the name 
of five persons, described as " Townsmen and agents of 
the English inhabitants." 

In the year 171 3, the inhabitants of Newark were in- 
corporated by Queen Anne, it being recited in this charter 
by the applicants therefor, " That their ancestors and 
predecessors, freeholders of the said town, by license from 
the Proprietors' Governor, in the month of July, 1667, 
had purchased from the Indians, all that tract of land 
now known by the name of Newark, &c." 

From the foregoing delineation of the title to the lands 
in question, it seems to be clear that when the deed from 
the proprietors was taken, the intention was to vest the 
interest in the entire body of the inhabitants of the town, 
and not in a particular class of such persons. The recital 
just extracted from the charter, which is subsequent to the 
proprietors' deed, plainly expresses this understanding. 

The next muniment of title we find in the case is the 
act of the legislature passed in the year 1804. {Pauiph. L. 
1804, page 255.) This law recited that the inhabitants 
of the town of Newark purchased all the lands in the 
bounds of the said town from the Indians; that they 
parceled out the same, " At the same time reserving cer- 
tain portions of land in various parts of said town for 
public purposes ;" and that doubts having arisen in respect 
to the Indian title it was thought advisable by the inhab- 
itants of said town of Newark to take a grant from the 
proprietors ; and that accordingly they took such convey- 
ance, but that '* Through the ignorance of those infant 
times, the use created by the said grant, although really 
meant and intended for the benefit of the inhabitants of 



S4 

the said town of Newark and their successors/* was so 
inartificially expressed that the town was embarrassed in 
asserting its rights in said lands. The statute then pro- 
ceeds to divert the estate created by the deed of the pro- 
prietors, and to transfer it to the inhabitants of the town- 
ship of Newark and their successors, declaring " That the 
estate hereby vested in the inhabitants of the township 
of Newark as aforesaid, shall be appropriated and forever 
remain to and for the several uses in the said original 
patent aforesaid expressed, and for no other use or uses 
whatsoever." 

The estate thus acquired by the township became after- 
wards vested in the city of Newark, by force of the pro- 
visions of its charter. 

There can be no doubt that the city of Newark has 
thus become invested with an indefeasible title to these 
lands, holding the same, at present, subject to the use 
above defined ; for, even on the assumption that the 
statute passing the title was originally inefificacious and 
void, the premises have been held openly and contin- 
uously under it for over eighty years. The title thus 
established, therefore, must be deemed indisputable. 
The city holds the fee of the land as a public burying 
place, the same being a charitable use. 

This being the posture of affairs, the legislature on the 
29th day of June, 1886, passed a law whereby it was pro- 
vided that when lands are held by cities for burial pur- 
poses, and are affected by a trust that they shall be 
devoted to that use, and when in the judgment of the 
Common Council the public good will be served by de- 
voting such lands to other public uses, it shall be lawful 
to use such lands for any public purpose for which, in the 
judgment of the Common Council, they are best adapted. 
The act further directs that in case interments have been 
made in such lands, the Common Council shall cause such 
remains to be removed to some suitable and proper burial 



55 

place, and shall make proper provision therefor and for 
the protection thereof, and to that end may make such 
reasonable appropriation of public moneys as may be 
necessary. 

The bill charges that by virtue of this statute the Com- 
men Council of Newark were proceeding to convert this 
burj'ing ground into a public market place ; and it was 
that course of action that the late Chancellor, in the 
decision embraced in the present appeal, enjoined. 

From the foregoing statement of the facts the character 
of the charitable use now in question will be readily un 
derstood. It is not a gift of land by a private donor 
devoting it perpetually to a particular public purpose ; 
nor is it a gift for such an object put in charge of a pri- 
vate corporation ; but it is property for such an end, 
purchased by the public and in the hands of the public. 
The situation is not unlike that which would occur if any 
city of the State, by force of appropriate legislation, should 
purchase out of the public moneys lands to be devoted 
forever to the use of a public cemetery. The question is, 
whether the property thus acquired and held by the muni- 
cipality would be possessed of such a nature as to be 
under the control of the legislature. 

The general principle of law on the subject is, that 
municipal property is subject to legislative authority. 
When property is put in trust in the hands of such a 
corporation, the effect is to prevent the corporation from 
perverting, at its own will, such property to other uses; 
but when the uses are public, and not derived from private 
grant, they are liable to be modified or changed with the 
concurrence of the law-making power. No case has been 
found that conflicts with this rule. Montpdicr v. Mont- 
pelier, 29 Vt. 12, which is the only adjudication cited in 
the opinion read in the Court below, is plainly not in 
point, for the Court in the decided case, resolved that the 
statute then in question, properly construed, was not in- 



56 

tended to apply to the trust property, and consequently 
the power of the legislature to deal with such property was 
not sub jtidicc. The Court neither did nor could properly 
decide whether the trust fund could be turned by stat- 
utory authority to other purposes, after declaring that 
the act under consideration neither had, nor was intended 
to have such effect. 

Nor is it deemed that the cases cited in the brief of 
the counsel of the appellees are more apt. These are 
four in number, viz., Montpelicr v. East Montpelier, 2y Vt. 
704; Dartmouth College v. Woodzvard, 4 Wheat. 188; 
Harrison v. Bridget on, 16 Mass. 16; and Plymouth v. 
Jackson, 1 5 Penn. 44. 

The first of these references has already been com- 
mented on ; the second seems to be eliminated from the 
inquiry by a mere advertence to the fact that it relates 
wholly to the consideration of the subject of the power 
of the legislature, with regard to the property and fran- 
chises of private corporations. 

The third citation, that of Harrison v. Woodward, seems 
more akin to the subject ; but, as it is considered, it is 
opposed to the contention in aid of which it is vouched. 
That controversy related to the division of a town. By the 
terms of the original grant of the township of Bridgeton, 
one sixty-fourth of the land granted was required to be 
appropriated for the support of schools, and a like propor- 
tion for the support of the ministry, and they were laid 
out by the proprietors accordingly. In 1805, the town 
of Harrison was incorporated, being composed in part of 
the towns of Bridgeton and Otisfield. By the act of 
incorporation it was provided, " That all property, rights 
and credits of the said towns of Otisfield and Bridgeton 
should be received and enjoyed by the town of Harri- 
son," in certain proportions, and the question was whether 
a proportionate part of the provision thus made for the 
ministry passed to the newly created corporation. The 



57 

distribution was negatived, but expressly on the ground 
that the provision for the ministry was not the property 
of the town, but that it belonged to a particular class as 
it would vest in the parishes as they came into existence. 
There was no question made that the lands, or their pro- 
ceeds, appropriated by the original charter for the support 
of schools, could be controlled and distributed by the sub- 
sequent legislation. There appears to be, with respect 
to their legal nature and qualities, no difference between 
a grant of land for the support of schools in a town and 
the appropriation of land as a municipal graveyard ; they 
are both charitable uses, and if the power could be dis- 
posed of by statute, as appears to have been conceded in 
the case cited, similarly the latter must be subject to the 
same authority. 

The last of the four decisions above named is also alien 
in principle to the present inquiry; it belongs to a well 
defined class of cases in which the present one is not in- 
cluded. It presents an instance of property devoted to a 
charitable use in the hands of a private corporation, and 
which, consequently, by force of the rule established in the 
Dartmouth College case, was declared to be impregnable 
to legislative invasion. There are a number of decisions 
resting on this basis. The line of demarcation between 
such cases and those in which the trust property is vested 
in a municipality, is clearly exemplified by two judgments 
rendered in the State of Maine. The former of the two is 
the case of Yarmouth v. North Yarmouth, 34 Maine, 411. 
The general principle on which it was settled was similar to 
the ratio decided in the Pennsylvania case just referred 
to, but incidentally it presents a feature instructive with 
regard to the topic under consideration. The case shows 
these facts : That the town of North Yarmouth owned 
a tract of land appropriated to the use of schools, and that 
the legislature then passed an act incorporating certain 
persons as trustees of this school fund, and authorizing 
8 



58 

them to sell the land, convert the avails into a fund and 
apply the income forever to the public schools in that 
town, " Among the districts in proportion to what they 
pay of town taxes." 

It will be noticed that here was an assumption of legis- 
lative power over this property while its title was in the 
municipal corporation ; arbitrarily the land was directed 
to be sold and the benefits of the use to be distributed in 
a new ratio. So far the legislative action was not deemed 
questionable, and the case was decided on the supposition 
that it was a legal exercise of authority. But when the 
legislature, having thus created a private corporation and 
placed that property in its keeping, endeavored by a later 
statute to regulate its distribution, such enactment was 
pronounced to be void. The Court draws the distinction 
with respect to legislative interference between a public 
and private corporation, and declared that these trustees 
"did not constitute," in the words of the opinion, "a 
municipal or public corporation, although the object of 
its creation might have been a public benefit. Their 
charter was a grant from the State, partaking of the 
nature of a contract, which they accepted and in which 
the government had no interest." 

The case seems an authority for the proposition that 
while this property, derived from a public source, was 
vested in the municipality, it was liable to statutory con- 
trol, but that when it had passed to a private corporation 
it was divested of such liability. 

The other decision in the same court, is that of North 
Yarmouth v. Shillings, 45 Maine, 133, and arose out of 
the following state of facts : The proprietors of the lands 
of North Yarmouth had conveyed to certain persons, 
their selectmen, " All the flats and mussel beds in said 
town, lying below high water mark, in behalf of and for 
the sole use, benefit and behoof of the present inhab- 
itants of said town of North Yarmouth, and of all such as 



59 

may or shall forever hereafter inhabit and dwell in the 
said town, to be by said inhabitants, forever hereafter 
used, occupied and improved in common," &c. 

By an act of the Iccjislaturc the town of North Yar- 
mouth was divided, and the question was as to the power 
of the legislature to give, as had been done, to the inhab- 
itants of the new town the use of these flats and mussel 
beds. The court sustained the law on the broad principle 
stated by Chancellor KENT, that, " In respect to public 
corporations which exist only for public purposes, as 
counties, cities and towns, the legislature, under proper 
limitations, has a right to change, modify, enlarge or re- 
strain them, securing, however, the property for the uses 
of those for whom it was purchased." 

This case is in express terms discriminated, with respect 
to its governing principle, from the previous case just cited, 
the court saying : " That it is very apparent from the 
reasoning and authorities cited (in that case,) that the 
court would have come to a different result, if the funds 
which were attempted to be divided by the legislature 
had been in the hands of the town, and not in the hands 
of a board of trustees." 

We think the rule applied in this case is the correct 
one, and that it could never be invoked with more pro- 
priety than in the instance now before this Court. This 
graveyard was obtained by the community for the use of 
the community; in the deed by which it was conveyed it 
is associated with other property obviously to be devoted 
to municipal uses, such as a site for a public market, a 
training ground and the public streets ; and all these sev- 
eral pieces of land have been regarded and treated as the 
public possessions of the city, for the market place and 
training ground have long since been converted into parks, 
and in 1809, it being represented to the legislature that 
the watering place for cattle embraced in the deed of the 
proprietors, had not, for many years, been used for the 



6o 

purposes for which it was originally appropriated, and 
was not wanted for such use, an act was passed authoriz- 
ing its sale, and i.t was sold accordingly by virtue of such 
authority. In this same vein no act more significant of 
the opinion prevailing in regard to the nature of these 
lands could have been exhibited than the act of the leg- 
islature enacted in the year 1804, transferring their title 
from the trustees to the corporate authorities. 

It is undeniable, that all these lands comprehended in 
the proprietors' conveyance have been dealt with by the 
public authorities for more than a century past, with the 
assent of all parties in interest, until the fihng of the 
present bill, as though they were property held in the 
ordinary way by a public corporation for public use. No 
reason is therefore perceived why the city of Newark 
should be enjoined from turning this cemetery to the 
beneficial use in contemplation, by virtue of the sanction 
of the recent statute. 

The principle thus asserted is important, for the oppo- 
site view would imperil large public interests and seri- 
ously embarrass the municipalities of the State in the 
management of their property. If it were true as a matter 
of law, as the Chancellor thought, that this graveyard 
cannot, even with the assent of the city and of the legis- 
lature, be used for any other purpose than that to which 
it was originally devoted, then the necessary result would 
be that these other tracts of land embraced in the pro- 
prietary grant would be subject to a similar restriction. 
By force of the prevalence of that theory, the public 
parks of Newark would be abolished, the one reverting 
to a market place and the other to a training ground ; the 
city would have in its midst a watering place for cattle, 
for the sale which has been made of that tract would be 
plainly illegalized ; and none of the original streets, no 
matter what the necessity, could be narrowed or broad- 
ened. And this state of things would continue not for a 



6i 

year, or a cycle of years, but forever. If a rule of law 
producing such consequences as these existed, its mis- 
chiefs would be equalled only by its unreasonableness. 

Nor do we think the decree appealed from should stand, 
even on the theory that these premises came to the city 
of Newark by settlement from a private benefactor. Let 
us assume that the old settief-s of Newark, not as a dc facto 
government, but as an association of individuals, gave 
this tract of land to be used by the inhabitants of the city 
as a burying place forever. What would be the legal 
result under present circumstances? Such a donation 
would not be subject to legislative control, for the interest 
the beneficiaries would acquire under such a grant would 
be equitable property entitled to the protection of the 
law. But although the present scheme of converting this 
tract of land to an alien use, could not be carried into 
effect by means of a statute which has been enacted for 
that purpose, in our opinion the same end could and 
would be reached through the intervention of the court of 
equity. The case would be presented of a charitable use 
which, from change of circumstances, cannot be reason- 
ably enjoyed in the mode provided by the settler. In the 
presence of such a situation, the legal principle is un- 
questionable; a court of equity will take the matter in 
charge, changing, when necessary, the nature of the do- 
nated property, or regulating the mode of its administra- 
tion. When the exigency arises a decree will be made 
that the trust property be sold, as when it has been shown 
to be desirable to move to a different location a church, 
hospital or school house. The doctrine is a familiar one. 

We think it clear that the present charity, as now con- 
ditioned, would fall within the scope of this authority 
and call for its application. The charity has failed in its 
main purpose. The design of the donor was to provide 
a place of burial, not for one or two generations, of the 
inhabitants of this city, but for all future generations. 



62 

But tliis cemetery has long since ceased to be used as a 
place of sepulture ; such a use of it has been and is now 
forbidden by law. It is a cemetery of the past ; a place 
where the bodies of a bygone generation repose. The 
question would be whether this tract of land should be 
for all time to come devoted to this limited use. Such, 
obviously, was not the intention of the donor. The in- 
habitants of the city who are the beneficiaries of the 
charity, through their duly constituted authorities, would 
stand before the Court showing that the devotion of the 
land to its present purpose is, taken as a whole, not a 
benefit, but a serious detriment to the public ; and that 
it is reasonable to remove the bodies in this yard to a 
more suitable place to be provided out of the city treas- 
ury, and thus effectuate that part of this charity that only 
is susceptible of being carried out. It is not perceived 
on what ground a court of equity could refuse to accede 
to such a prayer ; for it does not seem possible that any 
reasonable person would say that this tract of land, in the 
most populous part of a large city, should be permitted 
to remain for all future time devoted merely to its present 
use ; for to say this would, in effect, be to maintain that 
a charity will be so carried into effect as to work an injury 
to its beneficiaries. It seems to us plain that under the 
conditions presented, the Chancellor, if he had been prop- 
erly applied to, would have been bound to permit the 
designed transmutation of this property. 

And if this be so, then the injunction should not have 
issued, for the Court will not enjoin the act of a trustee 
of a charitable use which itself would have directed to be 
done had the case been before it. Such a trustee may 
alienate the trust property, but he will do such act at the 
peril of his conduct being disapproved of by the Court of 
Chancery. On this head the case of the Attorttey-Gen- 
eral v. South Sea Company, 14 Beav. 453, is an illustra- 
tion. Eight messuages were conveyed to trustees, the 



63 

rents to be applied, by way of certain charitable uses, for 
the poor of the parish. The trustees leased these prop- 
erties for ninety-nine years to the South Sea Company, 
and this was complained of as a breach of trust. But 
Lord Langdale, defining the power and duty of a trus- 
tee of this class, says: " It is plain that in ordinary' cases 
a most important part of this duty is to preserve the 
property, but it may happen that the purposes of the 
charity may be best sustained and promoted by alienating 
the specific property. The law has not forbidden the 
alienation, and this court upon various occasions, with a 
view to promote the permanent interests of charities, has 
not thought it necessary to preserve the property in 
specie, but has sanctioned its alienation." And after re- 
marking that the trustees may do, at their own risk, what 
the Court would have done under the circumstances, and 
deeming the alienation made by the trustees, on the 
whole, beneficial, he dismissed the bill. 

This we think should have been the course in the 
present case ; the Chancellor, even on the theor}' adopted 
by him that this charity was not subject to legislative 
control, should not have enjoined the municipal authori- 
ties from doing the act contemplated by them, inasmuch 
as if the case had been before him, he would have been 
constrained, by the force of a principle of equity that is 
not open to question, to have directed the doing of this 
same act. 

The decree must be reversed and the bill directed to 
be dismissed, but under the circumstances, without costs 
in either Court. 



64 



The Indian Bill of Sale to tlie Newarke Men. 

Entered 2d March, 1676-7. [E. J. Records, Lib. i, fol. 69. j 

Know all men By these presents, that Wee, Wapamuck 
the Sakamaker, and Wamesane, Peter, Captamin, Wecap- 
rokikan, Napeam, Perawae, Sessom, Mamustome, Cacan- 
akque, and Hairish, Indians belonging now to Hakinsack, 
the known acknowledged proprietors of a certain tract of 
Land Lying on the West of Pesayak river being parties 
on the one Side, and Mr. Obediah Bruen, Mr, Samuel 
Kitchell, Michael Tomkins, John Browne, and Robert 
Denison, with the consent and advice of Capt'n Philip 
Carteret, Governeur of the Province of New Jersey, and 
in the behalf of y*' Inhabitants now being or to be y'' 
possessors of the Tract of Land Inserted in this Deed 
of Sale the other parties, Doe make this Indenture the 
eleventh day of July in the year of our Lord 1667 (being 
the enlarging and perfecting of a deed of Sale made With 
the Indians the year before the present) in manner and 
form following, viz : 

That Wee, the said Wapamuck the Sakamaker, and 
Wamesane, Peter, Captamin, Wecaprokikan, Napeam, 
Perawae, Sessom, Mamustome, Cacanakque, and Harish, 
doe, for ourselves and With Consent of the Indians, Bar- 
gain, sell and deliver, a Certain tract of Land, Upland, 
and Meadows of all sorts. Wether Swamps, Rivers, Brooks, 
Springs, fishings, Trees of all sorts, Ouaries and Mines, or 
Metals of what sort soever. With full liberty of hunting 
and fouling upon the same, Excepting Liberty of hunting 
for the above said proprietors that were uppon the upper 
commons, and of fishing in the above said Pesayak River ; 
which said tract of Land is bounded and Limited with 



the bay Eastward, and the great River Pesayak North- 
ward, the great Creke or River in the meadow running to 
the head of the Cove, and from thence bareing a West 
Line for the South bounds, wh. said Great Creke is Com- 
monly Called and known by the name Weequachick, on 
the West Line backwards in the Country to the foot of 
the great mountaine called Watchung, being as is Judged 
about seven or Eight miles from Pesayak towne ; the 
said Mountaine as Wee are Informed hath one branch of 
Elizabeth towne river running near the above said foot 
of the mountaine; the bounds northerly, viz. Pesayak 
River reaches to the Third River above the towne, y*" 
River is call Yauntakah, and from thence upon a north- 
west line to the aforesaid mountaine ; all which before 
mentioned Lands for the several kinds of them, and all 
the singular benefits and Priviledges belonging to them, 
with y" several bounds afifixed and expressed herein, as 
also free liberty and range for Cattle, horses, hoggs, and 
that though they Range beyond any of the bounds in 
this deed Expressed, to feed and pasture Without Moles- 
tation of or damage to the owners of the cattle &c. above 
said. Wee the above said Indians, Wapamuk, &c. doe 
sell, Alienate, make over and Confirm all our Right, Title 
and Interest of us, our heirs, and Successors forever Unto 
the said Lands, &c., as above mentioned to Mr. Obediah 
Bruen, Mr. Samuel Kitchell, Michael Tomkins, John 
Browne and Robert Denison, townsmen and Agents for 
y' English Inhabitants of Pesayak, to them, their heirs 
and associates for Ever, to have, hold, and dispose of, 
Without Claim, Let, or Molestation from ourselves or any 
other Whatsoever. These Lands, &c. are thus solde and 
delivered for and in consideration of fifty double-hands 
of powder, one hundred barrs of lead, twenty Axes, twenty 
Coates, ten guns, twenty pistols, ten kettles, ten Swords, 
four blankets, four barrels of beere, ten paire of breeches, 
fifty knives, twenty howes. eight hundred and fifty fathem 
9 



66 

of wampem, two Ankors of Licquers or something Equivo- 
lent, and three troopers Coates ; these things are received, 
only a small remainder Engaged to them by bill. To the 
true and just performance according to y*^ true intent of our 
Bargain, Wee y" said Obediah Bruen, and the rest above 
said, doe for ourselves and heirs, Ex'tors, Adm'n'tors or 
Assigns, to the said Wapamuk, &c., the true proprietors 
of the said Lands doe bind and Covenant. Wee the said 
Wapamuk and the rest of the Indians above said doe 
fully surrender, pas over and Yeild up all our Right, priv- 
ilege and power in the same, and to free the above said 
Lands from Claim, Incumbrances, of What kind soever; 
all the above mentioned purchase Wee doe Grant and 
deliver to Obediah Bruen and y*" rest above said, to them, 
their associates, heirs, and all the lawfull possessors. And 
for the full Ratifification and testification of the above 
said bargain and agreements about the aforesaid tract 
and parcells of Land so bounded, Wee, the said parties 
above mentioned have hereunto Enterchangeably sett 
our hands and seals, the day and year above said, in the 
presence of Us Witnessing. Moreover Wee doe grant 
them free liberty to take what timber and stones they 
please in any of our Lands, where Wee the above said 
Indians have yet propriety. 

OBEDIAH BRUEN, 
MICHAEL TOMKINS, 
SAMUEL KITCHELL, 
JOHN BROWNE, 
BOBERT DENISON. 



67 

Wafamuk. 
Harish, 

CaI'TAMIN. 

Mamustome. 
Peter, 
Wamesane, 
Wekaprokikan, 

Cacanakrue. 

Sessom, 

Perawae, 




his marke. 

C V«. his marke. 

his marke. 

'his marke. 

(j^^ his marke. 

^L^ liis marke. 

^^ J his marke. 

I 5 his marke. 

\2__) his marke. 

^^\^ his marke. 



Signed, sealed and delivered in presence of 
Sa.muel Edssall, 
Pierwim, y' Sachum of Pau, X his marke. 

Edward Burrowes, 
mark of R Richard Fletcher. 
ClasSE X his marke. 



SIGIL. 



68 



Indian Deed of Sale and Confirmation to the 
Towne of Newark. 

Entered i8th March. [E. J. Records, Lib. i, fol. 107.] 

Wereas in the original deed of sale make by the In- 
dians to the inhabitants of the town of Newark, bareing 
date the ellevent day of July, 1667, it is said to the foot 
of the Great Mountaine, called Watchung, alias Atchunck, 
Wee Winocksop and Shenocktos, Indians and owners of 
the said Great Mountaine, for and in consideration of two 
Guns, three Coates, and thirteen kans of Rum, to us in 
hand paid the receipt Wereof wee doe hereby acknowl- 
edge, doe Covenant and declare to and with Mr. John 
Ward and Mr. Thomas Johnson, Justices of the peace of 
said towne of Newark, before the Right Hon'ble Phillip 
Carteret, Esq., Governeur of the Province of New Jersey, 
and the other witnesses here under written, that it is 
meant, agreed, and intended that their bounds shall reach 
or goe to the top of the said Great Mountaine, and that 
Wee the said Indians will marke out the same to remain 
to them the said inhabitants of Newark, their heires or 
Assignes for Ever. In Witness hereof Wee the s'd In- 
dians have hereunto sett our hands and Scales the 13th 
of March, 1677-8. 

Winocksop, \/^\P his marke. [sigil.] 
Shenocktos, ^^ his marke. [sigil.] 

Signed, sealed and Delivered in the presence of 
James Bollen, Secretary, 
Hendrick Drogestradt, 
Samuei, Harisson, 
This acknowledged before me the day and yeare above 
written. 

PH. CARTARETT. 



69 



Deed from the Proprietors. 

[E. J. Records, Lib. F. fol. 166-168.] 

The Proprietors of the Province of East New Jer- 
sey, To all pcrsoncs to whome these presents shall come 
Greeting. Know ye, that Wee the sayd Proprietors 
for and in consideration of the Rents and services herein 
After Reserved and for severall other good causes and 
consideratione.s us hereunto moving. Have Given, granted, 
bargained and sold, And by these presents Do grant, give, 
bargain and sell unto John Curtis, John Treat, Theophe- 
lus Peirson and Robert Yong, all of the Townc of New. 
ark in the countie of Essex and Province afore sayd, All 
those severall Tracts of Land and meadow hereafter 
Expressed, scituate, Lyeing and being within ihe sayd 
Towneship of Newark : 

1st. A Home Lott, In Length tenn chaines, in breadtli 
at the east and middle three chaines Lack six foot And 
att the west end foure chaine and three quarters of A 
Chaine ; bounded North by John Johnson, south by Daniel 
Browne, east and west by high wayes. 

Also A tract Lyeing Above Daniell Dods Home lott 
Begining at Daniel Dodd's South-west corner, thence 
tuning North at the East End twenty Eight chaines to 
the highway; thence as the highway runes twentic six 
chaines to the branch of the Mill Brooke ; thence Along 
the Brooke seaven chaines at the west End to Samuell 
Huntington's line; bounded west by the sayd branch, 
North by the highway. East by Hance Alberts. Samuel 
and Daniel Dod, and by the other Lotts South. 

Another tract beyond the Mill brooke branch Begin- 
ing At A Chestnut tree markt on foure sides which is 
John Ward's corner; thence runing north west Seaven- 
teene chaines to a maple tree markt as before at the 



;o 

swamp side ; thence south and by west seventy to another 
tree markt as before ; thence East and by south twentie 
chaines to Mr. Crane's corner, bounded North by Land 
unsurveyed, East by other Lotts, west by the Swamp and 
fresh meadows, south by other Lotts. 

Also a peece of meadow at the Lower tide pond, in 
Length seaventeene chaines, In breadth seaven chaines, 
bounded east by the creeke that runs into the tide pond, 
south by Hugh Roberts and Thomas Staples', north by 
the Pond, west by Oyster Creeke. 

Also a peece of swamp Lying at the Great Swamp in 
the Neck, begining at the Bogg [bridge, in the survey,] 
and runing in Length twentie chaines north, and at the 
south end fifteen chaines, bounded south by the bridge, 
east by the boggs, west by other Lotts. 

Also another peece of meadow at the head of the 
Great Meadow, Begining at Samuel Potter's South west 
corner And running North twentie chaines in breadth to 
Aaron Blackley's line, in length twenty chains, bounded 
east by Samuel Potter, north by Aaron Blackley and 
John Johnson, west by the swamp, south by Eliezer 
Lampson and unsurveyed Land ; containing in all the 
above said tracts of upland and meadow (after allowances 
for barrens, highways, &c.) two hundred acres, being 
alotted for the parsonage. 

2dly. All that small tract alotted for the bureing place, 
takeing in the Pond and meeting house, being seaven 
chaines in Length and foure chaines in breadth, bounded 
west by John Treat, south by John Johnson, North and 
East by Highways. 

3dly. A triangle peece aloted for a Markett place, six 
chaines wide at the south end, on the west side nine 
chaines in length, and on the east side eleven chaines in 
length, bounded on all sides by highways. 

4thly. Another triangle peece alotted for a training 
place, in length on the west side seaventeen chaines, on 



the south-cast side fifteen chaines, and on the east end 
scaven chaines and a halfe, bounded on all sides by High- 
ways. 

jthly. Another triangle peece Alottcd for a watering 
place for cattle. Begining at John Plum's corner and 
running up the brooke west seaven chaines, thence east 
and by north scaven chaines to the highway, and at the 
east end one chaine three rodes; bounded south by John 
Plum, and Robert Daglish, North and East by highways. 

And lastly, the streets of the sayd towne of Newarke, 
as they arc now laycd out, viz : the high street to remaine 
about two chaines more or less in breadth, and in length 
from Hugh Roberts* brooke to the mill brooke thorow 
the Middle of the Towne ; and the rest of the streets to 
bee as they are now in breadth ; TOGETHER with all and 
all manner of rivers, rivolcts, springs, runes, streames, 
Dams, feedings, Pastures, woodes, under woodes, trees, 
waters, water courses, water falls, ponds, poolls, pitts, 
meadows, easements, profits, commodities, liberties, ad- 
vantages, Emoluments and Appurtenances whatever to 
the same belonging or any manner of ways appertaining; 
To Have and to Hold the^said several tracts of up- 
land, meadows and premises with theire and ever}- of 
theire appurtenances to them the sayd John Curtis, John 
Treat, Theophelus Peirson and Robert Yong their heires 
and Assignes forever ; to the only proper use, benefit and 
behoof of the Old Setlers of the towne of Newark aforesaid, 
their heires and Assignes forever. In Com'on ; granted to 
bee and Remaine to and for the several uses herein par- 
ticularly expressed, and to be appropriated for no other 
use or uses whatsoever; To bee Holden in free and com'on 
soccage of us the sayd Proprietors, our heires and As- 
signes forever As of the seignorie of East Grecnwitch ; 
Yeeldinc; and paying therefor unto us the Proprietors, 
our heires and Assignes forever, sixpence sterling monie 
of England, for the aforesaid .several tracts of Land on 



72 

every five and twentieth day of March forever hereafter, 
in Leiu and instead of all other services and demands 
whatsoever. 

In Witness whereof Wee Have caused the scale of 
our sayd Province to be hereunto afifixed, and the same 
to be signed by our Governour and the Major part of his 
Council for the time being this tenth day of December, 
Anno Dom. 1696, and in the eight yeare of the Raigne 
of our soveraigne Lord, William the Third, over Eng- 
land, &c., King. 

AND. HAMILTON, 
*-~^* JOHN INIANS, 

i L.S. [ SAMUEL DENNIS, 

*_^^ JOHN BISHOP, 

JAMES DUNDAS, 
JOHN ROYSE. 



73 



"Town Pattern or Charter." 

(E. f. Records. Lib. A. A. A., fol. 145.] 

Anne, by the Grace of God Queen of Great Brittain. 
ffrance and Ireland, Defender of y" faith &c. To all to 
whome These Presents Shall Come or may in any wise Con- 
cern Sendeth Greeting. Whereas, our Loveing Subjects 
John Treat, Joseph Harison, Eliphelet Johnson, John 
Cooper, and John Morris, freeholders and Inhabitants of y" 
Town of Newark in y'" County of Essex in our Province 
of New Jersey, on behalf of themselves and the Rest of 
y' freeholders of y* said Town and by their order, by their 
Humble Petition Presented to our Trusty and well Be- 
loved Robert Hunter Esq'r Captain General and Gover- 
nour in Cheife of our Said Province, have Sett forth, that 
their Ancestors and Predecessors, freeholders of y*" said 
Town, by License from y*" Proprietors, Governour, in y* 
Month of July one Thousand Six Hundred Sixty Seven, 
had Purchased from y* Indians, all that Tract of Land now 
Known by y'" Name of Newarke, Bounded Easterly by a 
Great Creek that Runs from Hackingsack Bay through y* 
Salt Meadow Called by the Indians Wequahick, and 
now Known by y'' Name of bound Creek : and Continu- 
ing from the head of y" Said Creek to the head of a Cove 
to a Markt Tree, from thence it Extended Westerly upon 
a Straight Line, by Computation Seven Miles be the 
Same more or Less to the End or foot of the Great 
Mountain and to the Ridge thereof Called by the Indians 
Wachung, Near where Runs a branch of Raway River, 
from thence Extending on a northerly Course along the 
Ridge of the Said Mountain to a heap of Stones, Erected 
to Asertain the Boundaiy between the s'd Town of New- 
ark and the Town of Achquickatnuck, from thence Run- 
jHg a South East Course by Achquickatnuck Bound 
10 



74 

Line, to where the brook or Rivolet Called by the In- 
dians Yantokah, but now Known by the Name of the 
Third River, Emtieth itself into Pasayack River and from 
thence Continuing Down along by the said Pasaiack 
River and Hackingsack Bay to the mouth of the said 
Bound Creek: and that for want of a Charter or Pattent 
of Incorporation they are under Sundry Inconviences and 
Disorders, which to prevent for y'' future they have there- 
fore Prayed our Charter or Pattent of Privilidges accord- 
ingly : which Request we being willing to Grant. Know 
YEE, that of our Especiall Grace, Certain Knowledge, 
and Mear Motion, We have Given, Granted, Rattified, 
and Confirmed, and Do by these Presents, for us, our 
heirs, and Successors for Ever, Give, Grant, Ratifie, and 
Confirm unto John Treat, Joseph Harison, James Not- 
man, Eliphelet Johnson, John Cooper, John Morris, 
Joseph Crane, Thomas Davis, Nathaniel Wheeler, and 
George Harison, in Trust to and for themselves and y'' 
Rest of y^ freeholders and Inhabitants of y'^ said Town 
and their Successors for Ever, within the Limits and 
Bounds aforesaid, the free Liberty and Privillidge of 
being a Town Ship, and They and their Successors for 
Ever hereafter are and Shall be a Comunity or Township, 
in Deed and in Name, in the said County of Essex, within 
our Said Province of New Jersey, by the Name of the 
Trustees of the freeholders and Inhabitants of the Town- 
ship of Newark, And that they and their Successors for 
Ever hereafter Shall have a Perpetuall Succession of the 
Number of Ten, Principle freeholders and Inhabitants of 
the s'd Township of Newark, who shall be the Trustees of 
the Freeholders and Inhabitants of the Township of New- 
ark for Ever, (That is to say) that upon y*^ Death of any 
one or more of the said Trustees, it Shall and may be 
Lawful for the freeholders of the said Township for the 
Time being, being therunto Sumoned or Warned by the 
Constable or Constables of the said Town for the Time 



bcin^;. by order of the Surviving Trustees of the said 
Township of Newark for the time being, or the Major 
part of them, and by other Publick waycs and Meanes, to 
Assemble and meet together, at Such time and Publick 
Place within y' said Township as the s'd Surviveing Trus- 
tees for the time being, or the Major part of them from 
time to time as Need shall be shall think fitt to Nominate 
and appoint, and there by Majority of votes of the said 
freeholders, to Elect and Choose so many of y'' Principle 
freeholders of the said Township Resideing within y' 
Bounds of the said Township as may fill up the Number 
of the s'd Trustees to be Ten, which Trustees so Chosen 
and Elected as aforesaid, together with the Surviving 
Trustees for the time being, Shall be Trustees of the Said 
Township to all Intents and Purposes as Much as if they 
had been particularly Nominated and Expressed in this 
our Said Grant. AND We Do further Give and Grant 
unto the said Trustees and their Successors for Ever, that 
it shall and may be Lawful to and for y'' said Trustees 
and their Successors for Ever, by y' Name of the Trus- 
tees of the freeholders and Inhabitants of y'" Township 
of Newark, In any of our Courts within Said Province 
of New Jersey to Sue and be Sued, Answer and be An- 
swered unto, Defend and be Defended. And We Do 
further Give and Grant unto the said Trustees and their 
Successors for Ever hereafter, and to the Major part of 
them, full Power and Lawful Authority once in Ever}- 
Year at their Discretion, to Summons and Call together 
the freeholders of the said Township, and for the said free- 
holders and their Successors so Summoned and Called 
together, to assemble and meet on Such Certain Day and 
at such place as the said Trustees for y*^ time being or 
the Major part of them shall appoint, to Elect and Choose 
by Plurallity of Votes of the said freeholders and their 
Successors, Such Number of the Said freeholders and 
their successors as they shall think fit, Not Exceeding five. 



76 

to be Overseers for appointing what Improvement Shall 
be Made for the Ensuing Year upon a Certain Neck of 
Land within the Bounds of the said Township, which by 
Reason of its Scituation and Natural advantages is or 
May be Easily Encloseed by a Generall fence, and for 
apportionateing to Each of the said freeholders Interested 
in the Said Neck, and their Successors for the time being, 
their Share of y® Charge of the Said Generall fence for 
the Common Good, which s'd apportionateing So made 
as afores'd shall be of force against Each of y'' Said free- 
holders and their Successors for the time being for their 
Respective Shares or Portions of the said Charge their 
Executors, administrators or assigns, for so Long time as 
the said Trustees and their Successors or y^ Majority of 
them shall think fitt and no Longer, and in Case of Refusall 
or neglect to Pay y** Same, it shall and may be Levied by 
y" Constables of the said Town or any one of them, by 
warrant from a Justice of the Peace within the said Town- 
ship by Distress, and by the said Constables or Constable 
to be paid into the said overseers for y*" time being, for 
the use aforesaid and no other use whatsoever. And 
We Do further Give and Grant to the said Trustees and 
their Successors for Ever, that it shall and may be Law- 
ful for y® freeholders and Inhabitants of y^ said Town, 
Annually and once in Every Year, to Assemble and meet 
together and to Choose Two Constables, one overseer of 
y® Poor, and one overseer of y® highwaies, by Majority of 
the Votes of the ffreeholders and Inhabitants of the s'd 
town of Newark, which Constable and overseer so Chosen 
as aforesaid Shall Serve in the said Respective Offices in 
the said Town untill the Next Anuall Election, if they 
so Long Live, or Pay the Sum of five Pounds for the use 
of the poor of Said Town, And that in Case of Death or 
Refusall of any of the said Officers to serve in any of the 
said Offices as often as the Same Shall Happen out of the 
Useuall Anniversary time of Election, that it shall and 



71 

maybe Lawful for the said freeholders and Inhabitants to 
assemble, and meet together to Choose others in their 
Room and place, and it shall and may be Lawful for a 
Justice of the peace within the said Township to admin- 
ister an oath to the Said Of^cers of the said Town, for the 
faithful Discharge of their Respective Offices. Anu We 
Do further Give and Grant to the said Trustees and their 
Successors all other Privillidges, Rights, Liberties and 
Immunities that the Township of Amwell or any other 
Township within our s'd Province of New Jersey Doth 
or may of Right Enjoy. To Have, Hold and Enjoy 
all and Singular the Privilidges, Rights, Liberties, and 
Immunities aforesaid, unto the said John Treat, Joseph 
Harison, James Notman, Eliphelet Johnson, John Cooper, 
John Morris, Joseph Crane, Thomas Davis, Nathaniel 
VVheeller, and George Harison, Trustees of the freehold- 
ers and Inhabitants of the Township of Newark and their 
Successors for Ever ; they y"-' s'd Trustees and their Suc- 
cessors for Ever Yeilding, Rendering, and Paying unto 
us, our heires and successores, Yearly and Every Year, on 
the feast Day of the ANNUNCIATION of the Blessed Vir- 
gin Mary, as an acknowledgment for the Said Privilidges, 
the Annual Rent of five Shillings, In Leiu and Stead of 
all other Rents, Services, and Demands whatsoever for 
the same. 

In testimony whereof, we have Caused these our Let- 
ters To be made Pattent, and y'" Seall of our Province of 
New Jersey to be affixed. Wittness our said Right Trusty 
and well beloved Robert Hunter, Esqr, Captain General 
and Governour In Cheiffe of the Provinces of New Jersey 
and New York, and the Teritories and Tracts of Land 
Depending thereon in America, and Vice Admirall of 
the Same &c. at fort Anne In New York, this Twenty 
Seventh Day of Apreill, in the Twelfth Year of our Reign, 
Annoqe Dom. 1713. 

[l. s.] J. BASSE, Secretary. 




S /i Conyar, ,/t( . 



NEWORKE OR PESAYAR T OWN E,_ 1666 _ 1680 



LIBRftRY OF CONGRESS 

Pil 

014 208 eS 2 




